Placher v. Streepy, Gen. No. 11158

• Decision Date: 08 October 1958
• Docket Number: Gen. No. 11158
• Citation: 153 N.E.2d 369,19 Ill.App.2d 183
• Parties: Jerry PLACHER and Dodds Trucking & Excavating Company (Plaintiffs), Appellees, v. Freeland B. STREEPY (Defendant), Appellant.
• Court: United States Appellate Court of Illinois

Page 369

153 N.E.2d 369

19 Ill.App.2d 183

Jerry PLACHER and Dodds Trucking & Excavating Company

(Plaintiffs), Appellees,

v.

Freeland B. STREEPY (Defendant), Appellant.

Gen. No. 11158.

Appellate Court of Illinois, Second District, First Division.

Oct. 8, 1958.

Gray, Thomas, Wallace & O'Brien, Joliet, for appellant.

Paul F. Brumund, Joliet, Micheal Orenic, for appellees.

SPIVEY, Justice.

This action was commenced to recover damages for injuries sustained by Jerry Placher in a fall on May 6, 1954. Dodds Trucking & Excavating Company, also a plaintiff, sought to recover sums paid to plaintiff Placher under the provisions of the Workmen's Compensation Act, Ill.Rev.Stat.1957, c. 48, § 138.1 et seq. It will not be necessary for reference to be made to Dodds Trucking & Excavating Company, and so for the sake of clarity, Placher will be referred to as if he were the only plaintiff.

Plaintiff was upon the defendant's premises under circumstances creating the relationship of a business invitee. While in the course of his employment, he called upon the defendant to purchase a truck axle. Defendant maintained a garage where repairs were made on motor vehicles and also sold parts salvaged from motor vehicles. Plaintiff was a former employee of the defendant and was familiar with the defendant's operation and his stock of parts. While climbing an extension ladder to reach parts stored in a loft, the ladder broke and plaintiff fell and was injured.

Plaintiff was awarded a verdict in the amount of $15,000 and the defendant appeals from the judgment entered thereon. Several errors are assigned by the defendant. Defendant contends that the complaint is insufficient in law to state a cause of action, that there was no evidence of negligence, that plaintiff was guilty of contributory negligence as a matter improper that the court erred in admitting improper evidence, that the verdict was contrary to the weight of the evidence, that the verdict was excessive, and that the jury was erroneously instructed.

Defendant in his pleadings did not challenge the sufficiency of the complaint, but chose to file an answer and defend the cause on the issues thus joined. The complaint alleged due care on the part of the plaintiff, a duty on the part of the defendant, a breach of that duty and injuries proximately caused thereby. Without reference to the degree of skill employed in preparing the complaint, we believe the complaint stated a cause of action. Church v. Adler, 350 Ill.App. 471, 13 N.E.2d 327.

In the case of Gustafson v. Consumers Sales Agency, 414 Ill. 235, 110 N.E.2d 865, 868, the court said, 'At common law the doctrine of 'aider by verdict' was developed to estop parties who were content to try their cases on bad pleadings from insisting in the appellate tribunal, after they had the benefit of the jury's deliberation, that the pleadings were insufficient. Under this principle a verdict was deemed to cure not only all formal and purely technical defects in a complaint, but also any defect in failing to allege, or in alleging imperfectly, any substantial facts which are essential to a right of action, provided 'the issue joined is such as necessarily requires, on the trial, proof of the facts so omitted or imperfectly stated and if such facts can be implied from the allegations of the complaint by fair and reasonable intendment.' Sargent Co. v. Baublis, 215 Ill. 428, 74 N.E. 455; Lasko v. Neier, 394 Ill. 71, 67 N.E.2d 162. This doctrine of 'aider by verdict' was qualified, however, by the rule that 'If, with all the intendments in its favor, a complaint wholly and absolutely fails to state any cause of action at all, objection can be made to it for the first time on appeal.' However, if a cause of action is stated, no matter how defectively, and the complaint is not challenged below, then such defect is cured by the verdict. Sargent Co. v. Baublis, 215 Ill. 428, 74 N.E. 455.'

'We are of the view that if appellant was of the opinion the cause of action was defectively stated the point should have been raised in the trial court. The Civil Practice Act provides all defects in pleading, either in form or substance, not objected to in the trial court, shall be deemed waived. Ill.Rev.Stat.1941, chap. 110, par. 166, sec. 42, subsec. 3. It also provides that all objections to pleadings heretofore raised by demurrer shall be raised by motion, which shall point out specifically the defects complained of. Sec. 45, subsec. 1. And it likewise provides that where a pleading is objected to by motion to dismiss because it is substantially insufficient in law the motion must specify wherein such pleading is insufficient. Sec. 45, subsec. 2. The Civil Practice Act applies to proceedings both at law and in equity, and is a remedial statute to be liberally construed.' Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177, 180.

In the instant case, no motion was filed attacking the complaint and after verdict the defendant cannot be heard to complain, concluding as we have, that a cause of action was stated.

Defendant contends that the plaintiff was guilty of contributory negligence as a matter of law because the witness Bell testified that he observed that the upper portion of the extension ladder was titled in the hooks. The plaintiff testified that before he started to climb the ladder, he tested the ladder and observed that 'the joints of the two parts were together.' There was, then, at least a conflict of evidence on this point. We are not prepared to say that this conduct constituted contributory negligence as a matter of law. This question was for the jury.

'Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal Constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law.' Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 80, 51 A.L.R.2d 624.

Next, it is contended that the court erred in admitting improper evidence. Plaintiff testified that he was married at the time of the occurrence, that he had ten children and that six are living with him at the present time. An objection was made to 'this line of testimony,' but the objection was not made until the questions had been asked and answered. No motion was made to strike the testimony, nor was there a request that the jury be instructed to disregard the testimony. For these reasons, we believe that the error, if any, in such testimony was waived by the failure of the defendant to make a timely and specific objection. Ruddy v. McDonald, 244 Ill. 494, 91 N.E. 651.

Defendant also complains that an expert medical witness was allowed to testify that in his opinion a condition was sufficient to cause pain. A medical witness may testify that in his opinion a condition may be traumatic in origin, that a condition may be permanent in nature, and that certain conduct might or could have caused a certain injury. There would seem to be no reason why a doctor could not express an opinion as to whether or not a condition is sufficient to cause pain. The court did not err in admitting this evidence. In Chicago Union Traction Co. v. Roberts, 22. Ill. 481, 82 N.E. 401, 402, in considering a similar question the court said, 'It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event, the testimony was merely the opinion of the witness, given as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form.'

Error is also assigned on the basis of a hypothetical question asked and answered. This question was objected to as being immaterial, invading the province of the jury and for failing to include all the elements of a proper hypothetical question. The question dealt with causation and sought to establish a connection between the injury and the plaintiff's condition at the time of the trial. Hypothetical questions are commonly used to establish causation. An affirmative answer cannot be said to invade the province of the jury, but rather, presents to the jury probative value, upon which the jury may exercise its fact finding function.

Defendant did not detail the elements said to be omitted from the hypothetical and without supplying these elements, any error in such a question is waived by failing to point out the omitted elements.

Defendant offered in evidence two photographs of a ladder said to be similar to the ladder which was broken in the plaintiff's fall. The court refused to admit the photographs because of a failure of preliminary proof and the testimony was that this was the same type of ladder and the only difference 'as far as you can see' is that the ladder in the exhibit was longer. The proof is obviously wanting in...