Muscarello v. Peterson
| Decision Date | 01 December 1960 |
| Docket Number | No. 35830,35830 |
| Citation | 170 N.E.2d 564,20 Ill.2d 548 |
| Parties | Catherine M. MUSCARELLO, Appellant, v. Elaine PETERSON, Appellee. |
| Court | Illinois Supreme Court |
Lidschin & Pucin, Waukegan, and Thompson, Lewin & Rafferty, Chicago, for appellant.
Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, (William A. Holmquist, Waukegan, of counsel) for appellee.
Catherine M. Muscarello, a minor, by her father and next friend, brought an action in the circuit court of Lake County against Elaine Peterson for injuries sustained in an automobile accident. A jury trial was had, resulting in a verdict and judgment for the plaintiff in the amount of $2,000. On appeal by the plaintiff the judgment was affirmed in the Appellate Court. 24 Ill.App.2d 262, 164 N.E.2d 282. We have granted plaintiff leave to appeal to this court for further review.
Defendant's liability is not disputed. The principal issue in the trial court was whether an epileptic condition testified to by the plaintiff's parents was caused by injuries received in the accident. It is claimed on plaintiff's behalf that the damages recovered are inadequate, and that this result was brought about because the trial court unduly restricted the cross-examination of defendant's medical witness. It is also urged that plaintiff was deprived of a fair trial because an adjuster for defendant's insurance carrier, in furnishing to the parents a copy of the doctor's medical report, omitted therefrom a paragraph in the original report indicating that there was a causal connection.
The accident occurred on June 5, 1955, as the plaintiff, a child six years of age, was riding in the rear seat of an automobile driven by her father. The car was struck by defendant's automobile, and plaintiff was thrown to the floor of the car. According to the testimony of her parents she was unconscious for a moment or two. Evidence on plaintiff's behalf further showed that on several occasions during the next few days she complained of headaches and stomach pains, and exhibited signs of nervousness. On June 9 she was taken to Dr. Adelman, the family physician. His examination revealed some contusions and abrasions on the forehead and chest, but her reflexes were normal.
In mid-August, while the family was returning from a trip to North Dakota, plaintiff suffered a convulsion or seizure in the automobile. In September two more seizures were experienced and plaintiff was then hospitablized for observation under the care of Dr. Adelman. After conducting a neurological examination and a general examination the doctor found no significant abnormality. He made a tentative diagnosis of post-traumatic convulsions, and referred the plaintiff to Dr. Frederick A. Gibbs, a professor of neurology and neuro-physiology and a specialist in electroencephalography and epilepsy. On September 12 Dr. Gibbs recorded an electroencephalograph on the plaintiff which was normal in all areas.
On February 14, 1956, at the request of defendant's insurance carrier, plaintiff was examined by Dr. H. R. Oberhill, the physician and neuro-surgeon who subsequently made the report hereinafter described. Dr. Oberhill referred plaintiff to Dr. Gibbs for a second series of electroencephalograms, which was made on February 24, 1956. This test, as well as subsequent ones on the following April 1 and November 2, showed certain positive results known as spike seizure discharges. After his examination of February 14, Dr. Oberhill mailed a written report to the insurance company, dated February 18, 1956, wherein he set forth at length plaintiff's history, the details of the accident and subsequent symptoms as related to him, the treatment or medications prescribed, and the nature of the examination he performed. The concluding two paragraphs of the letter read as follows:
'We have ordered an electroencephalogram to be made by Dr. F. A. Gibbs on February 24, 1956, and once we receive the results of that examination we will, of course, write you further.
An insurance adjuster thereafter sent to the plaintiff's parents what purported to be a copy of the letter. The copy sent omitted the last paragraph of the letter.
At the trial defendant called Dr. Oberhill as an expert witness. In answer to a hypothetical question based upon facts as shown by the plaintiff's evidence, he stated as his opinion that the described condition of ill-being at the time of the trial was not connected with a blow on the head such as that sustained by the plaintiff. He further expressed an opinion that the encephalogram is not a reliable test for epilepsy. In cross-examining the doctor, the plaintiff's attorney sought to discredit his testimony about the value of an electroencephalogram by showing that after his examination of the plaintiff he did in fact order an electroencephalographic test to be made on her. An objection to the questioning was sustained on the ground that the direct examination had been limited to a hypothetical question and that the attempted cross-examination was beyond the scope of matters brought out on direct. The plaintiff thereafter called Dr. Oberhill as her own witness and brought out the fact that he had examined her and arranged for an electroencephalogram to be made which later revealed a spike seizure focus in the right mid-temporal area.
In being questioned about the contents of his February 18 report concerning the nature of the disturbances, Dr. Oberhill produced a copy of the letter. Plaintiff's counsel asked to read the copy; and he then discovered the fact that the last paragraph, expressing the probability of a causal connection between the accident and the seizures, had not appeared in the copy received by plaintiff's parents. The attorney thereupon had his partial copy marked for identification as an exhibit; and during argument on a post-trial motion some two months after judgment had been entered, it was incorporated into the record together with the original letter.
Plaintiff complains first that prejudicial error was committed in restricting the cross-examination of Dr. Oberhill. The record shows...
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People v. Phillips
...by others as difficult when it seeks to clarify a point that the proponent would rather not have elucidated. (See Muscarello v. Peterson (1960), 20 Ill.2d 548, 170 N.E.2d 564 (where this court noted that great latitude is allowed in cross-examination in order to achieve the well-recognized ......
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Burton by Burton v. Estrada
...and important part of the instant litigation, and the court has a duty to see that her rights are protected. Muscarello v. Peterson (1960), 20 Ill.2d 548, 555, 170 N.E.2d 564, 569. Addressing the requirement that a prayer for Section 2-1401 relief present a meritorious claim or defense, app......
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DeLuna v. Treister
...are Mrs. DeLuna's minor children, plaintiff implores us to act solicitously with regard to their interests (see, Muscarello v. Peterson (1960), 20 Ill.2d 548, 170 N.E.2d 564; Blakely v. Johnson (1976), 37 Ill.App.3d 112, 345 N.E.2d 814). We agree that a wooden application of the res judicat......
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Gillespie v. Chrysler Motors Corp.
...asked witness a series of questions regarding lost limbs when case involved an eye injury; new trial awarded); Muscarello v. Peterson (1960), 20 Ill.2d 548, 553-55, 170 N.E.2d 564 (insurance company altered evidence relating to claim by a minor; court, in awarding a new trial, characterized......
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Procedures for Objections & Motions
...the other party could not receive a fair trial and the judicial process could not stand without deterioration.” Muscarello v. Peterson , 20 Ill 2d 548, 170 NE2d 564 (1960). • Unauthorized communication with jurors. To sustain a jury’s verdict following an improper ex parte communication bet......
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Table of Cases
...Ill App 3d 172, 485 NE 2d 855 (1985), §14:100 Munson v. Rinke , 395 Ill App 3d 789, 919 NE2d 438 (2009), §18:60 Muscarello v. Peterson , 20 Ill 2d 548, 170 NE2d 564 (1960), §1:60 Myers v. Levy, 348 Ill App 3d 906, 808 NE2d 1139 (2d Dist 2004), §18:30 N Napcor Corp. v. JP Morgan Chase Bank, ......