{ "id": 5392114, "name": "Jerry Frym, a Minor by Marion Frym, His Father and Next Friend, Plaintiff-Appellant, v. Rovex Pharmacy, Incorporated et al., Defendants-Appellees", "name_abbreviation": "Frym v. Rovex Pharmacy, Inc.", "decision_date": "1973-02-20", "docket_number": "No. 57841", "first_page": "173", "last_page": "177", "citations": [ { "type": "official", "cite": "10 Ill. App. 3d 173" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "217 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill.App.2d 201", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588493, 2588967 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/70/0201-02", "/ill-app-2d/70/0201-01" ] }, { "cite": "232 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill.App.2d 2", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8498900 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/88/0002-01" ] }, { "cite": "156 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.2d 353", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5194852 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/20/0353-01" ] }, { "cite": "159 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "22 Ill.App.2d 143", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5202930 ], "weight": 2, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/22/0143-01" ] } ], "analysis": { "cardinality": 446, "char_count": 6675, "ocr_confidence": 0.769, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1588498016679737 }, "sha256": "cf7faf9024cb5edfb1a901817c38d02d8319bc969c1fafda8dfd176bd69c7318", "simhash": "1:b6743e97510be9e4", "word_count": 1139 }, "last_updated": "2023-07-14T20:49:00.166365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jerry Frym, a Minor by Marion Frym, His Father and Next Friend, Plaintiff-Appellant, v. Rovex Pharmacy, Incorporated et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE BURKE\ndelivered the opinion of the court:\nJerry Frym, a minor, seeks to recover for injuries sustained in the course of his employment as a delivery boy for defendant. On November 30, 1966, the date of the occurrence, plaintiff, then 13 years old, in the course of making a delivery was using an allegedly defective bicycle provided by defendant.\nIn his complaint, plaintiff alleged that the employment was in violation of Illinois Revised Statutes, 1971, ch. 48, par. 31.1 which provides:\n\u201cNo minor under sixteen years of age at any time shall be employed, permitted or suffered to work in any gainful occupation in connection with any theatre, concert hall or place of amusement, or any mercantile institution, store, office, hotel, laundry, manufacturing establishment, mill, cannery, factory or workshop, restaurant, lunch rooms, beauty parlors, barber shop, bakeries, coal, brick or lumber yard, or in any type of construction work within this state; provided, that minors between fourteen and sixteen years of age may be employed, permitted, or suffered to work outside school hours and during school vacations but not in dangerous or hazardous factory work or in any occupation otherwise prohibited by law or by order or regulation made in pursuance of law.\u201d\nThe trial judge refused to direct a verdict on the issue of liability and submitted the case to the jury on the issues of liability and damages.\nThe jury returned a verdict finding the issue of liability in plaintiff\u2019s favor and assessing damages against defendant in the amount of $4,500 and the court entered judgment thereon. Plaintiff appeals and seeks a new trial on the issue of damages.\nPlaintiff argues that the court erred in refusing to allow the jury to be advised that loss of future earnings is a proper element of damages. An examination of the record however, contradicts plaintiff\u2019s assertion and indicates that plaintiffs counsel during the course of the trial advised the jury to consider \u201closs of future earnings\u201d as an element of damages. The record indicates three, occasions on which plaintiffs counsel, without objection, advised the jury to consider \u201closs of future earnings\u201d as an element of damages. Plaintiff\u2019s lawyer said to the jury:\n\u201cThink of what a child thirteen years old is injured, [sic] He\u2019s nineteen years old now. He has to live fifty-one years. Can he be a doctor \u2014 sure, he can. So can I. What if he isn\u2019t. What if he ends up a laborer. A sheet metal worker. You think he can do the job? What happens to a boy like that. Think of it. Think about about [sic] your child. What would happen to them and this is the day you have to give him what he deserves. What he should have. He can\u2019t come back tomorrow, or the next day, and say gentlemen you didn\u2019t give me enough money. Think about that.\n# #\nNow, he will not be able to do any type of work that everybody else can do. That\u2019s what you have to remember. That\u2019s why his capacity for earning will be reduced and that\u2019s what he had to live with. There\u2019s no way to get that arm any better. God knows if there were they would do it.\n# # *\nIf I applied for a job and in the application and he has to take a physical and they examine him and see the arm the way it is I don\u2019t think they\u2019ll hire him. AH things can\u2019t equal if they have a boy that has two good arms and they have him. I don\u2019t think they\u2019ll hire him. Would you hire him? He\u2019d be a risk for them. Consider that. You must consider that when you compensate him. That\u2019s important.\u201d [sic]\nPlaintiff also argues that the trial court erred in refusing to give the jury an instruction which included \u2018loss of future earnings\u201d as an element of damages. The record establishes that plaintiff did not tender to the trial judge during the jury instruction conference an instruction relating to \u2018loss of future earnings.\u201d\nThe Illinois Civff Practice Act, Section 67 (3) (Ill. Rev. Stat. 1971, ch. 110, sec. 67(3)), provides in relevant part:\n\u201c* * * No party may raise on appeal the failure to give an instruction unless he shall have tendered it.\u201d\nIn Cobb v. Marshall Field & Co., 22 Ill.App.2d 143, 159 N.E.2d 520, this Court was concerned with a similar situation in which the plaintiff alleged that the trial judge had erred in instructing the jury. The Court, in response to plaintiff\u2019s argument stated:\n\u201cIf correct instructions were tendered and refused there would be merit to the plaintiffs\u2019 contention that the court erred in instructing the jury, but a party cannot raise on appeal the failure to give instructions if he does not offer them. Chapter 110, \u00a767(3), Ill. Rev. Stat. 1957; Beckstrom v. Montgomery Ward & Co., Inc., 20 Ill.App.2d 353, 156 N.E.2d 230.\u201d Cobb v. Marshall Field & Company, 22 Ill.App.2d 143, 157, 159 N.E.2d 520, 526.\nSee also Sesterhenn v. Saxe, 88 Ill.App.2d 2, 232 N.E.2d 277; Rennie v. Jacoel, 70 Ill.App.2d 201, 217 N.E.2d 105.\nWe are of the opinion that Section 67 (3) (Ill. Rev. Stat. 1971, ch. 110, sec. 67(3)), is mandatory when it states:\n\u201cs * * No party may raise on appeal the failure to give an instruction unless he shall have tendered if.\u201d (Emphasis supplied.)\nIn the instant case, plaintiff did not tender an instruction concerning \u2018loss of future earnings\u201d and therefore he cannot raise as error on appeal the court\u2019s failure to give the instruction.\nPlaintiff urges that the court erred in submitting the issue of liab\u00fcity to the jury, and that he is entitled to a new trial on the issue of damages.\nThis Court cannot subscribe to plaintiff\u2019s speculative argument. There is no evidence in the record which would indicate a compromise on the issue of Hability. On the contrary, plaintiff at the trial introduced evidence of approximately $600 in medical expenses. The jury awarded plaintiff $4,500 in damages. W\u00e9 cannot say that the verdict is so inadequate as to require a new trial on the issue of damages.\nCourts of review should not indulge in speculation as to the motives and intentions of the jurors. The record shows that plaintiff was not prejudiced as a result of the trial court\u2019s refusal to direct a verdict on the issue of liability.\nFor these reasons the judgment is affirmed.\nJudgment affirmed.\nGOLDBERG and STAMOS, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE BURKE" } ], "attorneys": [ "Jack Joseph and Clarence S. Lipnick, both of Chicago, (Joseph & Friedman, and Lipnick, Barsy & Joseph, of counsel,) for appellant.", "Michael J. McCardle and David P. Schippers, both of Schippers, Betar, Lamendella & O\u2019Brien, of Chicago, for appellees." ], "corrections": "", "head_matter": "Jerry Frym, a Minor by Marion Frym, His Father and Next Friend, Plaintiff-Appellant, v. Rovex Pharmacy, Incorporated et al., Defendants-Appellees.\n(No. 57841;\nFirst District (1st Division)\nFebruary 20, 1973.\nJack Joseph and Clarence S. Lipnick, both of Chicago, (Joseph & Friedman, and Lipnick, Barsy & Joseph, of counsel,) for appellant.\nMichael J. McCardle and David P. Schippers, both of Schippers, Betar, Lamendella & O\u2019Brien, of Chicago, for appellees." }, "file_name": "0173-02", "first_page_order": 197, "last_page_order": 201 }