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Mileur v. Briggerman

OPINION FILED NOVEMBER 9, 1982.

MAX MILEUR, PLAINTIFF-APPELLANT,

v.

HERMAN F. BRIGGERMAN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Union County; the Hon. D.D. Bigler, Judge, presiding.

PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Max Mileur, brought this action against defendant, Herman F. Briggerman for money damages for personal injuries sustained by him in a hunting accident occurring on April 20, 1977, in Union County, Illinois. The jury returned a verdict for the plaintiff and determined his damages to be $2,700.89; it further found that plaintiff's negligence in the amount of 50% contributed to cause the accident and judgment was entered for plaintiff for $1,350.45, from which plaintiff appeals.

On appeal, plaintiff contends that the trial court should have granted judgment notwithstanding the verdict on the issues of plaintiff's negligence and his damages or, in the alternative, grant a new trial on these issues because the jury's verdict was contrary to the manifest weight of the evidence. Plaintiff further contends that the trial court should have granted a mistrial because of certain prejudicial remarks made by defense counsel before the jury. Plaintiff also maintains that the trial court erred in overruling plaintiff's objection to defendant's testimony regarding the customary dress worn by hunters in deer hunting. Finally, plaintiff contends that the trial court erred in giving defendant's jury instructions over plaintiff's objections.

On April 20, 1977, plaintiff was turkey hunting alone on Hudson Creek in Union County. After about 15 minutes, plaintiff, who was dressed in camouflage, decided to move to a different location. He began to move from his seated position and leaned over on his knees to place his hands on a tree to assist in raising himself. While plaintiff was on his hands and knees, he shook both of his feet sideways because mosquitoes were biting him around the ankles. Plaintiff stated that he thought he heard a noise and then saw the defendant standing 40 or 50 yards from him. When defendant's gun went off, plaintiff jumped and was shot in the foot, side of the leg, left shoulder and chest.

After the accident, plaintiff declined defendant's offer of assistance and drove himself to the Anna Hospital where he was examined by Dr. Thomas W. Davis. Dr. Davis took X rays, gave him a shot, some medication for pain and an antibiotic and told him to see his family physician in Belleville. The next day plaintiff visited Dr. Haskins who gave him a tetanus shot and some antibiotics and advised him to rest. Dr. Haskins suggested that plaintiff return if he experienced any trouble. Plaintiff did not return and received no further medical care for nearly two years when he was examined by Dr. Cesar Climaco in Belleville on April 30, 1979. Plaintiff then went almost another year before seeking treatment, this time from Dr. Karen Ann Strack in Murphysboro, Illinois, on March 11, 1980.

Plaintiff missed nine days' work as a result of the accident and testified that he lost $694.99 in wages, according to his employer's records. Plaintiff testified that since the incident he has had continual pain which has become worse. He stated that he has had difficulty sleeping and takes a pain killer in order to sleep. Plaintiff further testified that he has scars up and down his legs and that there are between 15 and 20 shot lodged within his leg.

On cross-examination, plaintiff stated that he was shot as he shook his feet. He noted that the defendant was behind him and to his left and there was nothing between them. Plaintiff further testified that when hunting he keeps a good lookout for turkeys, but not for other hunters.

The defendant was called as an adverse witness and testified that he shot the plaintiff. He stated that he saw some movement, raised his shotgun, saw more movement, shouldered his shotgun and fired. He testified that all this occurred in a matter of seconds and that it was the movement that got his attention.

Dr. Thomas M. Davis testified on behalf of the plaintiff and stated that he saw the plaintiff once, on April 20, 1977, at the Union County Hospital emergency room. He testified that he observed multiple puncture wounds in the area of the right foot, thigh and left shoulder and chest and stated that X rays revealed small metallic pellets in these areas. Dr. Davis stated that providing there was no infectious process, he expected the plaintiff to have a full recovery with no significant residual or permanent disability.

Plaintiff was next examined on April 22, 1977, by Dr. Haskins. A report prepared by Dr. Haskins, introduced into evidence by stipulation, stated that he recommended that plaintiff return if he had any problems, "but for certain within ten days." Plaintiff never returned.

Dr. Cesar D. Climaco testified that he examined plaintiff on April 30, 1979. He took an X ray of the plaintiff and round metallic pellets in his foot. Dr. Climaco stated that the only treatment would be to remove surgically the pellets but he did not feel this was appropriate because they are difficult to find and removal would do more damage.

Dr. Karen Ann Strack testified that she first examined plaintiff on March 11, 1980, and that he complained of pain in the legs and feet, particularly after standing for a long time. Dr. Strack further testified that the X ray revealed small found metallic foreign bodies in plaintiff's leg, foot and buttocks. She stated that the pellets could have been removed surgically but the chance of creating more scar tissue and more nerve and muscle damage would far outweigh the benefits hoped to be achieved.

On February 25, 1981, plaintiff visited Dr. Strack for a second time and complained of the same problem as before along with some swelling and generalized heat and redness in the feet. She stated that she felt that a large portion of the pain was attributable to the shot and that he would probably continue to suffer for the rest of his life. Her prognosis was that this was a chronic condition which would probably get worse. She said that she anticipated no other future medical care, other than treatment of sterile abscess or local infection should it occur.

A jury trial was scheduled for March 12, 1980, and on March 2, 1981, but was continued for both times. In the presence of the jury, defense counsel requested the court to take judicial notice of these prior trial settings and their close proximity to the examinations by Dr. Strack. The court denied this request and also ...


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