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May 20, 1994


Appeal from Circuit Court of McLean County. No. 91L88. Honorable William T. Caisley, Judge Presiding.

As Corrected August 8, 1994.

Honorable Carl A. Lund, J, Honorable John T. McCULLOUGH, P.j., Concurring, Honorable Robert W. Cook, J., Specially Concurring

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

In an action to recover damages for personal injury under section 6-21 of the Dramshop Act (Act) (Ill. Rev. Stat. 1991, ch. 43, par. l35), a jury returned a verdict in favor of plaintiff in the amount of $47,764.64. The trial court granted plaintiff's motion for a new trial, finding the damages awarded were manifestly inadequate. The new trial was limited solely to the issue of damages, and the jury in this new trial awarded $86,862 in damages. The court entered judgment for $30,000, the statutory maximum for personal injury under the Act. On appeal, defendant contends the trial court erred in (1) limiting the new trial to the issue of damages only; and (2) admitting into evidence a treating physician's testimony regarding a blood-alcohol test performed on plaintiff. Plaintiff cross-appeals, claiming the trial court erred in reducing the award to $30,000. We affirm.

Plaintiff was injured in a one-car automobile accident on May 4, 1990. The driver of the vehicle, Charles Rongey, began drinking at the Dustcutter Tavern (Dustcutter) in Bloomington, Illinois, at 7:45 a.m. and stayed until 3:15 p.m. when plaintiff arrived. Rongey estimated he drank between 10 and 20 beers. When plaintiff arrived, Rongey gave him money and asked him to get them a drink. Plaintiff drank three-quarters of a mixed drink before he and Rongey decided to drive to Havana, Illinois, to go fishing. Plaintiff went home to bathe and change clothes. Soon after, Rongey picked him up at his home and they drove 45 minutes to the Three Points Tavern (Three Points) on Route 136. They ate sandwiches, had a drink, and left about 5:30 p.m. Sometime afterward, Rongey fell asleep at the wheel and the truck ran off the road, severely injuring plaintiff.

Plaintiff testified that Rongey did not appear intoxicated at any time on the day of the accident. Rongey testified he was drunk at the time of the accident, because police cited him for driving under the influence of alcohol. However, he admitted signing a statement on December 20, 1990, claiming he did not think he was drunk at any time on the date of the accident. The jury returned a verdict in favor of Three Points and against Dustcutter.

In its post-trial motion, Dustcutter urged the trial court to order a new trial on all issues. The trial court refused, finding that issues of damages and liability were adequately separate and distinct, and that evidence on liability amply supported the verdict. On appeal, defendant contends that the jury's award was the result of a compromise on the question of liability and a new trial should be granted on all issues.

Defendant cites Kinsell v. Hawthorne (1960), 27 Ill. App. 2d 314, 169 N.E.2d 678, for the principle that a new trial should not be awarded on damages only, where it appears the damages awarded were the result of a compromise on the question of liability. ( Kinsell, 27 Ill. App. 2d at 320, 169 N.E.2d at 681-82.) Defendant portrays the liability issue in this case as hotly contested. He points out that conflicting evidence was heard establishing whether Rongey was actually intoxicated. The jury was also instructed on the affirmative defense of complicity. Plaintiff conceded he drank alcohol with Rongey at both taverns. The jury was instructed that plaintiff could not recover damages if it found that he had voluntarily participated, to a material and substantial extent, in the drinking which led to Rongey's intoxication. Finally, defendant points out the fact that the jury found in favor of Three Points and against Dustcutter. This, defendant argues, is further proof of a compromise verdict.

At the first trial, plaintiff testified on direct examination that his medical bills totaled approximately $63,000. Plaintiff's counsel then asked him if it was true that all but $15,000 of this had been paid. Plaintiff agreed with the statement. During deliberations, the jury sent a note asking whether it should award $63,000 or $15,000 for medical damages. The trial court replied that it had all the evidence and instructions it needed and should continue deliberations. The jury awarded $15,000 for medical expenses as part of a total award of $47,764.64. After the second trial, the jury awarded the full $63,000 in medical expenses as part of a total award of $86,862. The difference between the two awards is approximately $39,000. Clearly, this difference is primarily the result of the jury's confusion over the amount of medical expense it should properly award--a situation created, we note, by plaintiff's own testimony on direct examination. The only other difference between the two awards is the fact that the first jury awarded $21,500 for pain and suffering, whereas the second jury awarded only $12,500 on this issue.

A new trial limited to a question of damages is appropriate where (1) the jury's verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict nor that, in some identifiable manner, the error which resulted in the jury's awarding inadequate damages also affected its verdict on the question of liability. Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393, 31 Ill. Dec. 189.

We find no indication of a compromise verdict in this case. The difference in the amount of the two jury awards is easily explained by the jury's confusion over medical expenses. Nor do we view the verdict in favor of Three Points as evidence of a compromise verdict. Rather, the jury's decision is most probably due to the fact that Rongey consumed only one drink at this establishment. In sum, the jury's verdict was amply supported by the evidence; questions of liability and damages were separate and distinct; and we find no evidence of a compromise verdict, nor any indication that the error causing the inadequate award affected the verdict or the question of liability. We find no error in the trial court's decision to limit issues in the new trial to damages only.

Next, defendant contends the trial court erred in admitting into evidence, over defendant's objection, testimony regarding a blood test performed on plaintiff sometime after the accident. Dr. Charles Montgomery, plaintiff's treating physician, was deposed prior to trial and his deposition was read to the jury. At the deposition, plaintiff's counsel asked Dr. Montgomery on redirect examination whether any laboratory tests were performed to determine alcohol levels in plaintiff's system. Dr. Montgomery replied that such a test was performed and the result was negative. He added that the lab test was routine. Defense counsel objected to this testimony at the deposition, and at trial, claiming insufficient foundation. The trial court ruled that evidence of the blood test, while not admissible as substantive evidence, was admissible as part of the material relied upon by the doctor in his treatment of plaintiff. The jury was instructed not to consider the blood test as evidence, and that the test was only admitted for the limited purpose of allowing it to weigh and evaluate the opinions of the witness.

Defendant contends there was strong evidence of plaintiff's complicity in Rongey's drunkenness. Two paramedics testified they smelled liquor on plaintiff's breath immediately after the accident. The fact he had been in Rongey's company for the last 2 1/2 hours prior to the accident further supports defendant's theory of complicity. Defendant contends that its complicity defense was prejudiced by allowing the jury to hear evidence of a negative blood-alcohol test. Plaintiff responds that this test, and its result, was just one of many the doctor listed in discussing plaintiff's treatment. Furthermore, ...

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