Greim v. Sharpe Motor Lines

• Decision Date: 23 October 1968
• Docket Number: Gen. No. 67--86
• Citation: 242 N.E.2d 282,101 Ill.App.2d 142
• Parties: Lewis T. GREIM, Plaintiff-Appellee, v. SHARPE MOTOR LINES, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 282

242 N.E.2d 282

101 Ill.App.2d 142

Lewis T. GREIM, Plaintiff-Appellee, v. SHARPE MOTOR LINES, a corporation, Defendant-Appellant.

Gen. No. 67--86.

Appellate Court of Illinois, Third District.

Oct. 23, 1968.

Rehearing Denied Nov. 20, 1968.

Coyle, Stengel, Gilman & Keefe, Rock Island, for defendant-appellant.

Reidy, Katz, McAndrews, Durkee & Telleen, Rock Island, for plaintiff-appellee.

CULBERTSON, Justice.

Defendant, Sharpe Motor Lines, appeals from a verdict and judgment of $23,000 for the plaintiff, Lewis F. Greim, in his action to recover for personal injuries and property damage allegedly sustained on August 6, 1964, in a vehicular collision at a Moline street intersection. Complaint is made of rulings on evidence and of jury instructions, and it is also contended that the verdict was excessive.

Due to the nature of the questions raised here, there is no need to set forth the details of the occurrence other than to say, generally, that the collision happened as defendant's southbound truck sought to make a left hand turn across a lane of traffic occupied by plaintiff's northbound automobile. Plaintiff was hospitalized for sixteen days and treated for various injuries, including one diagnosed as traumatic myositis, or strain, of the muscles of the neck. According to plaintiff's evidence, the effects of the latter injury have persisted and worsened with baleful consequences to plaintiff, both physical and economic. It is the position of defendant that the neck injury was not proximately caused by the occurrence of August, 1964, but by a prior automobile accident of 1957, and it is broadly stated that rulings on evidence by the trial court prevented defendant from presenting this defense to the jury. No contention is made that the verdict of the jury was against the manifest weight of the evidence.

During his direct examination, plaintiff testified that he had been involved in an automobile accident in 1957, wherein he had sustained a whiplash injury to his neck. He stated that there had been no hospitalization other than the taking of x-rays; that he had used a traction device at home for a time; and that he had received periodic treatments in the office of Dr. Dasso, an orthopedist. Continuing, plaintiff testified that he had fully recovered from the 1957 injury about one year after his treatment had ceased and that while he had subsequently seen a doctor about other ailments, he had not been treated again for the neck injury in the interval between 1958 and August 6, 1964. On cross-examination, he admitted that he had started a law suit as a result of the 1957 accident, and stated that it had been settled out of court. Following this, counsel for the defendant produced a copy of the complaint filed in the prior suit, and, apparently reading from it, inquired of plaintiff if it did not contain allegations indicating permanent injury. An objection to the question was overruled and plaintiff answered that the complaint contained the allegations specified. Thus, we are moved to observe, even if it can be said, as defendant seems to feel, that the part of the prior complaint in question did in fact contradict plaintiff's direct testimony as to the permanency of the 1957 neck injury, defendant was successful in impeaching the witness before the jury. Immediately thereafter, however, rulings of the trial court stifled efforts of defendant: to inquire whether the prior complaint had not alleged that plaintiff had received severe injuries about his head, neck, spine, back, arms, legs and nerves; to ask whether it had alleged that plaintiff had been compelled to expend large sums for medical and surgical expenses; and to learn the name of the attorney who had represented plaintiff in connection with the 1957 accident. It is now contended that the latter rulings of the court erroneously prevented defendant from impeaching the plaintiff.

The record shows that the prior complaint was not signed by plaintiff, but by an attorney on his behalf, and plaintiff testified that he was unaware what his attorney had filed. Under the circumstances, and bearing in mind that the prior complaint did not relate to the occurrence at issue in the trial, (see: Carlson v. New York Life Ins. Co., 76 Ill.App.2d 187, 222 N.E.2d 363; McGourty v. Chiapetti, 38 Ill.App.2d 165, 186 N.E.2d 102) there is in our mind a serious question as to whether plaintiff could properly be impeached from a document which was the product of the attorney and of which plaintiff had no knowledge as to its contents. (see: Wendzinski v. Madison Coal Corp., 282 Ill. 32, 37, 118 N.E. 435; Taylor v. Alton & Eastern R. Co., 258 Ill.App. 293, 299--300; Hobart v. O'Brien (1st Cir.) 243 F.2d 735, 744; Jimenez v. Starkey, 85 Ariz. 194, 335 P.2d 83, 84). It is enough to say, however, that the evidence excluded by the trial court's limitation of the cross-examination did not in our opinion serve to impeach the plaintiff. On his direct examination, plaintiff testified that he had received a whiplash injury to his neck and was not asked, and did not say, that it was the only injury received in the 1957 accident. Accordingly, there was no inconsistency with the allegation of the prior complaint that plaintiff had received injuries to his head, neck, back, spine, arms, legs, body and nerves. Similarly, there was no marked inconsistency with the allegations of the complaint that plaintiff had expended large sums for medical and surgical services. While plaintiff was not questioned on direct examination as to the medical expenses incurred, he testified that he had x-rays, a traction device and periodic treatments at the office of Dr. Dasso and it must be presumed that such services were not free. Finally, and so far as the jury was concerned, the disclosure of the name of the attorney who had represented plaintiff in the 1957 matter would not have served to impeach anything testified to by plaintiff on direct examination. The record shows that the name of the attorney was on the complaint and had the defendant wished to call him to establish plaintiff's knowledge of the contents of the prior complaint it was at liberty to do so.

While the defendant was presenting its case, the court refused to receive a copy of the prior complaint into evidence and it is now urged that the exhibit was admissible both for purposes of impeachment and as substantive evidence that plaintiff's neck injury had been proximately caused by the 1957 accident. What has already been said disposes of the matter of impeachment, and in our opinion the claim that the exhibit should have been received as substantive evidence relating to the issues of the case is equally untenable. The theory that plaintiff's neck injury was caused by the prior accident was an affirmative defense and defendant had the burden of proof on such point. And as is shown more fully by the extended discussion of the problem in Marut v. Costello, 53 Ill.App.2d 340, 202 N.E.2d 853, and Caley v. Manicke, 29 Ill.App.2d 323, 173 N.E.2d 209, the allegations of injury contained in the prior complaint could have no relevancy unless, and until, defendant produced competent medical proof that a reasonable connection existed between the 1957 injury and the injury for which recovery was sought in the present action. Defendant failed to produce this connecting proof, and the trial court properly refused to accept the exhibit as substantive evidence.

In like manner, the court did not err in refusing to permit defendant to introduce a 1957 photograph, which portrayed plaintiff using a traction device on his neck. It could not serve to impeach plaintiff, since he testified freely on his direct examination that he used such a device after the 1957 accident, and, on the state of the record, could have no relevancy on the question of whether there was a connection between the neck injuries suffered in 1957 and 1964.

Defendant's next contention centers around the testimony of Dr. Francis J. Cenedella, who had been plaintiff's regular physician since 1950. This witness recounted in sequence his treatment of the plaintiff for such things as prostate trouble, nervousness, and internal complaints over the years, and then testified in detail as to the injuries received by plaintiff in the 1964 accident, their treatment, the response to treatment, and as to plaintiff's physical state when last examined. So far as the 1957 neck injury was concerned, the doctor said he had seen the plaintiff three times in connection therewith, once at the hospital and twice in his office, but did not thereafter treat him inasmuch as p...