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Tisoncik v. Szczepankiewicz

OPINION FILED MARCH 15, 1983.

JOSEPH T. TISONCIK, PLAINTIFF-APPELLEE,

v.

LESLIE SZCZEPANKIEWICZ, INDIV. AND D/B/A B & L CARTAGE ET AL., DEFENDANTS-APPELLEES. — (RONALD BIESBOER, INDIV. AND D/B/A BRITES CARTAGE, DEFENDANT-APPELLANT; GALLAGHER ASPHALT CORP. ET AL., DEFENDANTS.)



Appeal from the Circuit Court of Cook County; the Hon. Lawrence P. Hickey, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 ON DECEMBER 7, 1982, WE ENTERED AN ORDER DISPOSING OF THE APPEAL UNDER SUPREME COURT RULE 23. DEFENDANT-APPELLANT BRITES FILED A PETITION FOR REHEARING. AN ANSWER BY THE OTHER PARTIES TO SAID PETITION WAS RECEIVED AS WAS A REPLY. WE HAVE THIS DATE ENTERED AN ORDER ALLOWING THE PETITION FOR REHEARING AND VACATING OUR DECEMBER 7, 1982, ORDER. THIS OPINION IS ISSUED AS THE RESULT OF THE PETITION FOR REHEARING.

Plaintiff, Joseph T. Tisoncik, brought this personal injury action against the owner-lessor, lessee and driver of a truck which collided with plaintiff's car. At the close of the evidence, the owner-lessor was granted a directed verdict in its favor and the driver was dismissed at plaintiff's request. The jury awarded plaintiff $156,652 against the lessee, Ronald Biesboer d/b/a Brites Cartage (Brites), the sole remaining defendant. Brites appeals from the jury verdict against it and from the dismissal of the co-defendants lessor and the driver of the truck.

Brites raises the following issues on appeal: (1) whether the trial court erred in excluding evidence concerning plaintiff's prior injuries and his ability to practice dentistry after the accident; (2) whether the trial court erred in directing the verdict in favor of the owner-lessor; and (3) whether the trial court erred in allowing the driver to be dismissed at plaintiff's request.

Plaintiff, a 59-year-old dentist, was injured on June 15, 1979, when the car he was driving was hit by a vehicle. Defendant Leslie Szczepankiewicz, doing business as B & L Cartage (B & L), as owner, had leased the tractor and trailer involved in the accident for a three-year period to Brites. The vehicles were leased under an Illinois Commerce Commission (ICC) "Equipment Lease," which provided that the equipment "shall be under the exclusive and complete possession, use, and control of [l]essee." According to Interstate Commerce Commission requirements, the truck carried Brites' name and ICC number. B & L garaged and maintained the vehicles and provided the driver, Joseph Murdie. Murdie admitted at trial that on the day of the accident, he did not see the traffic signals at the intersection until he was about 25 feet from them. His truck hit plaintiff's car, causing plaintiff injuries for which he sought damages for pain and suffering, medical expenses and lost wages.

At the close of all the trial evidence, defendant B & L moved for a directed verdict which the trial court granted and dismissed B & L from the action. The driver, Murdie, was dismissed with prejudice upon plaintiff's request. The jury was given the instruction that Murdie was Brites' agent at the time of the occurrence and returned a $156,652 verdict for plaintiff.

I

Brites contends that the jury awarded plaintiff an excessive verdict as a result of the trial court improperly excluding: (a) evidence concerning a knee tap performed on plaintiff in 1969; and (b) photocopies of plaintiff's daily appointment books for 1979 and 1980.

A

A sizeable portion of plaintiff's medical expenses and time lost from his dental practice was attributable to the surgery and subsequent therapy of his right knee. Testimony at trial revealed that plaintiff had two problems with his right knee — a degenerative process that involved a softening of the tissue, and a torn meniscus. In 1969, 10 years prior to the accident, plaintiff banged his right knee on a chair and a knee tap was performed on him by a physician (a Dr. Keagy) who did not testify at trial. In 1971, plaintiff received injections in his right knee from the same physician. The trial court struck the evidence regarding the 1969 knee tap, but allowed evidence of the 1971 treatment.

Brites argues, therefore, that the prior condition of plaintiff's right knee was placed into issue. Evidence of a prior injury is admissible if a causal relationship between the injury is shown or when it involves the same area of the body. Elberts v. Nussbaum Trucking, Inc. (1981), 97 Ill. App.3d 381, 384, 422 N.E.2d 1040.

Brites contends that it was error to exclude evidence of the knee tap because it prevented the jury from considering whether plaintiff's complaint was an aggravation of a pre-existing condition. Plaintiff's treating surgeon testified extensively regarding the existence of the degenerative condition and admitted he had no way of knowing how long plaintiff had it or the torn meniscus prior to the 1980 surgery.

• 1 A review of the record reveals that striking of the evidence in question did not result in prejudice to defendant's theory of aggravation of a pre-existing condition as it claims it did. The incident took place approximately 10 years before the current incident. There is no evidence in the record as to the nature, extent, duration or treatment of the 1969 incident, other than there was a single injection. Brites presented no offer of proof nor attempted to provide more explicit evidence.

B

• 2 Brites also claims that the trial court erroneously declined to admit defendant's exhibits Nos. 7 and 8, which were certified photocopies of plaintiff's daily appointment books for 1979 and daily logs for 1980. The justification advanced by Brites at trial for admitting the exhibits was that they impeached plaintiff's testimony regarding extractions that he performed after the accident. Brites was able to cross-examine plaintiff from the information contained in the exhibits, thus the jury was informed as to the nature of Brites' theory. Although the trial court did not allow the exhibits to go to the jury, any error in so ruling, in our opinion, was not prejudicial. A careful ...


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