Jeffrey v. Chicago Transit Authority

• Court: Appellate Court of Illinois
• Writing for the Court: DEMPSEY
• Citation: Jeffrey v. Chicago Transit Authority, 37 Ill.App.2d 327, 185 N.E.2d 384 (Ill. App. 1962)
• Decision Date: 03 October 1962
• Docket Number: Gen. No. 48590
• Parties: Primus JEFFREY, Lorene Jeffrey, Mary Alice Lee and Frances Kay Lee, and Rhima Louise Lee, minors, by their mother and next friend, Mary Alice Lee, Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, Defendant-Appellee.

Page 384

185 N.E.2d 384

37 Ill.App.2d 327

Primus JEFFREY, Lorene Jeffrey, Mary Alice Lee and Frances Kay Lee, and Rhima Louise Lee, minors, by their mother and next friend, Mary Alice Lee Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation Defendant-Appellee.

Gen. No. 48590.

Appellate Court of Illinois, First District, Third Division.

Oct. 3, 1962.

Gomberg, Missner & Lacob, Chicago, for appellants.

Wm. J. Lynch and Wm. S. Allen, Chicago, for appellee.

DEMPSEY, Presiding Justice.

In this personal injury case arising from a rear end automobile collision, a jury found in favor of the five plaintiffs but awarded them no damages. The questions to be determined are the propriety of such verdicts and the correctness of the court's instruction: '* * * if you find there is no damage to the plaintiffs, then you will indicate on the verdict, 'We, the jury, find for the plaintiff with no damages.''

An automobile driven by Primus Jeffrey stopped for a red light at Michigan Avenue and 20th Street, Chicago, on March 14, 1955. A Chicago Transit Authority bus also stopped for the red light, about three feet behind the Jeffrey auto. The bus driver dropped a coin and as he reached to pick it up from the floor, his foot slipped from the brake and the bus, which had an automatic transmission, rolled into the Jeffrey auto. The bumpers hooked together. Jeffrey, the bus driver and a third man disengaged them and the vehicles went on their way.

Jeffrey's wife, Lorene, was in the front seat with him and she held an infant, Rhima Lee, on her lap. The infant's mother, Mary Lee, was in the rear seat with another daughter, Frances, two year's old. Jeffrey testified that his shoulder and back were injured, that he was out of work for two weeks and that he was under a doctor's care for several weeks. Lorene Jeffrey testified that she was knocked against the dash board, that her back and legs were injured and that they still pained her at the time of the trial in 1961. She said the baby fell to the floor. A doctor, who treated all the plaintiffs, testified that the baby had multiple contusions. Mary Lee testified that the impact threw her against the front seat and to the floor; that her back and shoulder were injured, her glasses broken, her eyebrow cut and that she suffered headache and dizziness. She said her daughter Frances received a bruised forehead and knee and a cut lip.

The trial was free of error and the verdicts were not influenced by passion or discernible prejudice. Complaint is made of the court's instructions but, with the exception of the one informing the jury that it could find 'no damages,' they were not objected to in the trial court. Objections to instructions will not be considered when made for the first time on review. Bucyna v. Rizzo Bros., 31 Ill.App.2d 31, 175 N.E.2d 640. However, an examination of these instructions reveals no misstatement of law which could have caused the inconsistent verdicts.

The plaintiffs' own evidence is the only explanation of the result. Their testimony was self-contradictory and was, in some material matters, impeached. The jury could have found them unworthy of belief and their injuries feigned. The testimony of their doctor, which corroborated them, was such that the jury could have given it little credence. The bills he submitted were in part for admittedly anticipated services which were not performed, and all of them, totaling $565.00 had been sent not to the plaintiffs but to their attorney, whom the plaintiffs saw in his office the day after the accident. Jurors are the sole judges of the credibility of witnesses and the weight to be given to their testimony. The jury's incredulity confirmed the opinion of the court who said during a conference outside the presence of the jury: 'I don't think anybody was hurt.'

This case must be distinguished from those where verdicts have been returned for plaintiffs with damages unassessed, or the damages assessed are inadequate, or the verdicts are contradictory and must be interpreted, or are compromises between the guilt of defendants and the damages sustained by plaintiffs. Kimmel v. Hefner, 36 Ill.App.2d 137, 183 N.E.2d 13; Adkins v. Blue Bird Coach Lines, Inc., 27 Ill.App.2d 34, 169 N.E.2d 368; Kinsell v. Hawthorne, 27 Ill.App.2d 314, 169 N.E.2d 678; Wachsmuth v. Flanagan, 335 Ill.App. 311, 81 N.E.2d 769; Springer v. Yellow Cab Co., 328 Ill.App. 354, 65 N.E.2d 482; Chapin v. Foege, 296 Ill.App. 96, 15 N.E.2d 943; Kilmer v. Parrish, 144 Ill.App. 270. Here the jury, although instructed by the court that the defendant was guilty and given but one form of verdict, found that the plaintiffs should have no compensation. It was not an oversight or a mistake; it was the sober judgment of the jury. The immediate problem, therefore, is this: in a negligence case, must damages be given for a legal injury even though no loss or harm has been sustained by the plaintiff?

Illinois has long held to the principle of law that every invasion of a legal right calls for some recovery because the law presumes damage. This principle has been applied to actions in tort and contract, to those for assault, for trespass, to compensate for a wrong or to vindicate a right whether the right breached is personal or relates to property. Plumleigh v. Dawson, 6 Ill. 544 (1844); McConnel v. Kibbe, 33 Ill. 85, (1864); Brent v. Kimball, 60 Ill. 211 (1871); Schweer v. Schwabacher, 17 Ill.App. 78 (1885); VanVelsor v. Seeberger, 35 Ill.App. 598 (1890); Wertheimer v. Glanz, 277 Ill.App. 389 (1934).

The principle has been extended to negligence cases. In Covenant Club of Chicago v. Thompson, 247 Ill.App. 122 (1927), it was stated that if a plaintiff makes out a prima facie case of negligence he is entitled to nominal damages. Parke v. Lopez, 306 Ill.App. 486, 29 N.E.2d 30 (1940), involved an automobile accident. As in the present case, verdicts were returned which found the defendant guilty but which 'assessed each of the plaintiffs' trial damages at no dollars and no cents.' In granting a motion for a new trial the trial court held that since the jury found for the plaintiffs they were entitled to some damages. The Appellate Court affirmed.

In Edwards v. Ely, 317 Ill.App. 599, 47 N.E.2d 344 (1943), the defendant ran his automobile into the plaintiffs' car while the latter was standing still waiting for a traffic light to change. During the course of the trial the defendant admitted his liability but contended that the plaintiffs were not injured. The trial court's instructions submitted to the jury the issue of liability as well as damages and gave the jury both guilty and not guilty verdicts. The jury returned verdicts of not guilty. The plaintiffs' position on appeal was that since the defendant admitted liability they were entitled to some damages. The defendant's position was that proof of actual damages is an essential element in a cause of action for negligence and that, even though he admitted liability, he was entitled to a verdict of not guilty in the absence of proof of actual damages. The Appellate Court held that inasmuch as the defendant had admitted liability the instructions on that subject and the verdicts of not guilty were improper. The court further held that the plaintiffs were entitled to at least nominal damages for the invasion of their rights, and that proof of actual damages was not essential to the cause of action. The court reversed saying that if upon retrial the defendant again admitted liability the case should be submitted to the jury only on 'the issue as to the extent of the plaintiffs' damages, which in any event must be at least nominal damages.'

The words 'which in any event must be at least nominal damages' epitomize the present rule of law in Illinois. This rule has been developed in the Appellate Court and we believe it should be re-examined. The re-examination takes on increased importance in view of the current trend in negligence cases toward the separation of the issues of liability and damages--where the former must be determined before the latter need be tried.

In reaching its conclusion, the court in Edwards v. Ely relied in part upon Covenant Club of Chicago v. Thompson, supra, which was an action on the case. This spotlights the course of the law in Illinois. At common law the action of trespass carried with it the right of redress. When the action of trespass on the case was introduced the compensation-for-every injury concept gave way to proof of actual damage before a recovery was permitted. Negligence actions evolved from actions on the case, therefore, proof that damage was really sustained should be necessary in such cases. Prosser, Law of Torts (1955), 2nd Ed., p. 165. However, in some jurisdictions the rule which prevailed in trespass carried over into actions on the case. Illinois is one of these jurisdictions. The early Illinois cases cited previously in this opinion for the principle of law the every injury imports damage were, for the most part, actions on the case. The next development was, as in Edwards v. Ely, the application of the rule to negligence actions.

In other jurisdictions where proof of actual damage is held to be essential in actions on the case, proof of actual damage is likewise held essential in actions based on negligence. These jurisdictions reflect the more normal and logical evolution of the principle that 'no one has a cause of action against another for the latter's wrongful act unless he is injured by it.' In Trudeau v. Manchester Coal & Ice Co., 89 N.H. 83, 192 A. 491 (1937), the New Hampshire Supreme Court succinctly expressed the principle in a case involving an auto struck in the rear by a truck while it was waiting for a traffic light to change: 'Both actions were brought in case. T...