{ "id": 2934797, "name": "Leon Feldman, Plaintiff-Appellant, v. Irene Fitzpatrick, Defendant-Appellee", "name_abbreviation": "Feldman v. Fitzpatrick", "decision_date": "1973-04-16", "docket_number": "No. 56491", "first_page": "617", "last_page": "625", "citations": [ { "type": "official", "cite": "11 Ill. App. 3d 617" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "185 N.E.2d 384", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill.App.2d 327", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5257374 ], "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/37/0327-01" ] }, { "cite": "258 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill.App.2d 233", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1581498 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/122/0233-01" ] }, { "cite": "278 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.App.3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2747242 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/1018-01" ] }, { "cite": "228 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "83 Ill.App.2d 435", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2556755 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0435-01" ] }, { "cite": "207 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill.App.2d 129", "category": "reporters:state", "reporter": "Ill. App. 2d", "opinion_index": 0 }, { "cite": "67 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "394 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472075 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill/394/0071-01" ] }, { "cite": "288 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "686" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "7 Ill.App.3d 1099", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2672404 ], "weight": 2, "pin_cites": [ { "page": "1102" }, { "page": "1102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/1099-01" ] } ], "analysis": { "cardinality": 859, "char_count": 19390, "ocr_confidence": 0.753, "pagerank": { "raw": 1.4415925411370823e-07, "percentile": 0.653234030246551 }, "sha256": "3f6dc63f0c52f924d6866f85ad59fe3abc0955a47f01f24631497cdd5c702134", "simhash": "1:8a50d5bb5f75c2f7", "word_count": 3196 }, "last_updated": "2023-07-14T15:22:35.785791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leon Feldman, Plaintiff-Appellant, v. Irene Fitzpatrick, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE BURKE\ndelivered the opinion of the court:\nAn automobile in which plaintiff was a passenger, driven by his 16-year-old son, Richard, was struck in the rear end by an automobile owned and operated by defendant, Irene Fitzpatrick.\nPlaintiff alleged that as a result of the occurrence, he sustained \u201csevere and permanent injuries\u201d and damages in the amount of $125,000.\nAt the conclusion of all the evidence, the court directed a verdict in favor of plaintiff on the issues of contributory negligence and defendant\u2019s negligence. The case was submitted to the jury on the issues of causality and damages. The jury returned a verdict in favor of defendant and judgment was entered thereon. Plaintiff appeals.\nPlaintiff testified that on May 15, 1965 at 5:00 P.M. he and his son, Richard, were involved in an automobile accident with the car of defendant, Irene Fitzpatrick. He testified that at the time of the occurrence he was riding as a passenger in the front seat and his son, Richard, was driving the vehicle. The Feldman automobile, northbound on Ridge Avenue in Chicago was stopped in obedience to a red traffic signal at Lunt Avenue. Plaintiff testified that defendant\u2019s car, which also was proceeding northbound on Ridge Avenue in the same lane as the Feldman car, struck the rear end of the Feldman car. Plaintiff testified that the impact of the vehicles caused him to strike his head on the windshield, as a result of which he became unconscious for half a minute.\nPlaintiff testified that the police department was notified and that a police officer arrived at the scene and investigated the accident. After the investigation plaintiff\u2019s son drove him home. Plaintiff stated that after the accident he felt \u201cbad\u201d and his \u201chead was hurting.\u201d\nPlaintiff testified that later that evening his brother and sister-in-law came over to his house and took him to see Dr. Sidney Alpert. Dr. Alpert recommended that plaintiff enter Mt. Sinai Hospital the next day where plaintiff was hospitalized from May 16, 1965 to May 28, 1965. Plaintiff testified that after his initial hospitalization, he was hospitalized on different other occasions and lost a substantial amount of time from work.\nOn cross-examination, plaintiff testified that after he struck his head on the windshield, he had a bruise in the right forehead area. He believed the bruise was discolored and that the bump or mark would be visible to persons observing him after the accident.\nPlaintiff\u2019s son testified that as a result of the impact of the vehicles, he was \u201cthrown back and forwards against the steering wheel\u201d and that subsequent to the accident he was treated by Dr. Alpert.\nOn cross-examination Richard Feldman testified that he had been a plaintiff in the lawsuit and had taken a non-suit approximately ten or fifteen minutes before he was called to testify as a witness in his father\u2019s behalf. He further testified that after the accident, he did not see any marks on his father and that his father did not respond to the investigating police officer\u2019s inquiry concerning whether anyone was injured. Richard Feldman testified that the Feldman car was damaged in the rear end but was unable to specify the exact area which was allegedly damaged and stated that the car was not repaired after the accident.\nDr. Merrell R. Reiss, a physician and neurologist associated with Mt. Sinai Hospital, called by plaintiff, testified that he examined an E.E.G. (electroencephalogram) taken of plaintiff on May 19, 1965. Dr. Reiss testified that his interpretation at that time was an \u201cabnormal E.E.G.\u201d and that this might indicate an irritative response to an injury. Dr. Reiss further testified that he interpreted a subsequent E.E.G. of plaintiff taken in August 1965 and that at that time plaintiffs E.E.G. was normal. In response to a hypothetical question propounded by plaintiffs counsel, Dr. Reiss stated that he was of the opinion that the abnormality he discovered at the time of the first E.E.G. was \u201cprobably secondary to or caused by the injury.\u201d\nOn cross-examination of Dr. Reiss, the following occurred:\n\u201cDefense Counsel: Doctor, as I understand it, your active professional services in relation to Mr. Feldman was reading these two electroencephalograms?\nThe Witness: That is correct.\nDefense Counsel: You performed no neurological consultation or other services?\nThe Witness: That\u2019s correct.\nDefense Counsel: Probably, as a matter of fact, you didn\u2019t even |\nsee the gentleman personally?\nThe Witness: Probably not. I could have in the laboratory, but probably not.\n# # #\nDefense Counsel: Is this the type of thing that might be caused, shall we say, by a blow to the head in a football game or falling down and bumping your head?\nThe Witness: It usually is caused by something where there is more than \u2014 in other words, if there is a bump on the head ordinarily the brain is not involved in any way. It would suggest that whatever injury there is, while it may not be anything of a serious or mortal nature, has had some effect, some mild effect at least, on the brain substance underneath.\nDefense Counsel: Can an irregular E.E.G. be caused by anything other than trauma, stress, or strain?\nThe Witness: Certainly. It can, yes.\u201d\nDr. Sidney Alpert testified as a witness in plaintiff\u2019s behalf that he saw the plaintiff at his office on the evening of May 15, 1965 and at that time Dr. Alpert suggested plaintiff enter the hospital. Dr. Alpert testified that plaintiff gave a history of having been involved in an automobile accident and that during his hospitalization, plaintiff complained of severe headache, severe stiffness and soreness in his neck and across his shoulders, being very tense and nervous, abdominal pain, nausea, and vomiting.\nOn cross-examination Dr. Alpert testified that his only objective finding during the first examination of plaintiff was \u201cspasticity in the neck, shoulder area and upper back.\u201d The witness further testified that he signed and approved a summary of the hospital records concerning plaintiff dated May 16, 1965 which stated that plaintiff\u2019s \u201cneck was supple and non-tender\u201d and that plaintiff was \u201csomewhat anxious and alert, but in no acute distress\u201d and that \u201cthere were no remarkable physical findings\u201d concerning plaintiff. Dr. Alpert stated that the hospital summary of May 16, 1965 was prepared by a medical student and that he did not necessarily agree with the findings. The witness testified that he would have signed the medical summary of May 16, 1965 notwithstanding the fact that he disagreed with the stated findings.\nDr. Harry H. Garner, a physician specializing in psychiatry and neurology called as a witness for plaintiff testified that plaintiff was referred to him for consultation by Dr. Sidney Alpert. Dr. Gamer testified that after treating plaintiff and examining his medical history he was of the opinion that there was a direct causal relationship between the accident which plaintiff experienced and the subsequent symptom syndrome and disability which Dr, Garner diagnosed as a \u201ctraumatic neurosis.\u201d\nOn cross-examination, Dr. Garner acknowledged that he was aware that plaintiff had been in a concentration camp during World War II and had immigrated to Israel and then to the United States. In response to a question concerning whether plaintiff s \u201cneurosis\u201d was a pre-existing illness, Dr. Garner stated that plaintiff had all the experiences and part of his personality makeup was such that he was \u201cprone to develop a neurotic reaction under stressful situations.\u201d\nDefendant Irene Fitzpatrick testified that on May 15, 1965, she was driving her car north on Ridge Avenue in Chicago. As she approached the intersection of Ridge and Lunt Avenues she noticed that the traffic control light for northbound traffic was red, applied her brakes and brought her car to a complete stop. At this time her vehicle was in the lane closest to the curb and the front of her car was two or three feet behind plaintiffs car.\nDefendant further testified that after she came to a complete stop, she put her car in neutral gear, and applied the brake. She then leaned over to get sunglasses out of her glove compartment and in doing so she apparently partially released the brake and her car rolled slightly forward and struck the rear bumper of the plaintiffs car. Almost immediately after the impact plaintiff got out of the car and came around to talk to her, to complain that her car had bumped into his car and damaged it. At the time of the conversation, she was in the drivers seat of her car and Mr. Feldman was standing next to her car and she saw no cuts or bruises on his face nor any bump or lump on his forehead. She got out of her car to inspect the vehicles. There was no damage to her car and she did not see any damage to the Feldman car. She further testified that at the time they were looking at plaintiffs car, she did not observe anything of an unusual nature about his actions or appearance.\nThe witness further testified that the police department was notified of the accident and that when the police officer arrived he questioned her and plaintiff. During the course of the police officers investigation, he asked if anyone was injured and no one responded affirmatively. She testified that at the time of the investigation, she saw no cuts or bruises on plaintiffs forehead.\nThe first time she had any knowledge of plaintiff\u2019s claim of injury was about ten days to two weeks after the accident when she received a letter from attorneys representing plaintiff. The witness further testified that subsequent to the accident, she saw plaintiff in the traffic court and at that time she did not observe any marks or bruises on his face and he did not make any complaint of injury to his person.\nChicago Police Officer Lewis Cane, called as a witness by the defense, testified that on May 15, 1965 he investigated an automobile accident at Ridge and Lunt Avenues involving the Feldmans and Irene Fitzpatrick. The accident report, Defendant\u2019s Exhibit 1, bore his signature and he had prepared the report on May 15, 1965. The officer testified that the report was \u201cmarked property damage and no indication of personal injuries.\u201d The officer further testified that if there had been any complaints of personal injuries, he would have marked the report \u201cinjury\u201d and would have filled out the back side of the accident report. The witness stated that he would mark on the report a complaint indicating injury if he saw a bump or cut or other indicia of injury even if the person involved indicated that he was not injured.\nThe defense called plaintiff as an adverse witness under Section 60 of the civil practice act. Plaintiff testified that when he came to the United States, he worked for Hamilton Glass Company and later for Century Industries. He testified that during the period from 1960 to 1965 he was not \u201csick or injured to any degree.\u201d He worked steadily and there were never any injuries to his wife or son that required him to take time off from work. He testified that he was \u201cvery happy\u201d in his employment.\nAt this point, defense counsel proceeded to introduce defendant\u2019s Exhibit 2, a letter from Century Industries dated March 1, 1963 which was directed to the plaintiff and which was covered by a stipulation regarding business records. Defense counsel then proceeded to read the following letter to the witness in the presence of the jury:\n\u201cThis is to advise you [Leon Feldman] that we are taking official notice of your repeated and excessive absenteeism from work. Further unauthorized absence will require that we replace you with an employee who will be present for work on a full-time basis. A copy of this letter will be forwarded to your union.\u201d From Sidney Gold, Director of Personnel.\nPlaintiff acknowledged seeing the aforementioned letter and further testified that the same company kept his job open for him for seven months after the accident and finally terminated him in December 1965.\nPlaintiff argues on appeal that the uncontradicted testimony of a causal relation between plaintiff\u2019s condition of ill being and the accident could not be rejected by the jury and therefore the verdict was against the manifest weight of the evidence,\nAs this court recently stated in Apato v. Be Mac Transport Co., 7 Ill.App.3d 1099, 1102, 288 N.E.2d 683, 686, a case involving a somewhat similar factual situation:\n\u201cIn a negligence action, however, a verdict may be directed as to liability only when liability has been proved as a matter of law. Liability includes both negligence and injury. Whether [plaintiff] sustained an injury was a major issue at the trial. In a negligence action the plaintiff must establish a duty owed by the defendant, a negligent act or omission by the defendant which breaches that duty and a compensable injury to the plaintiff resulting from such breach. (Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162; Drell v. American Nat. Bank and Trust Co. (1965), 7 Ill.App.2d 129, 207 N.E.2d 101.) To warrant an assessment of liability, affirmative and positive proof is required that tire actionable negligence was the proximate cause of the injury. (Sansone v. Atchison, Topeka & Santa Fe R.R. Co. (1967), 83 Ill.App.2d 435, 228 N.E.2d 101.) Even if the jury concluded that the [defendant] was negligent, [plaintiff] would not have been able to recover damages unless the jury also believed that she had been injured as a result of [defendant\u2019s] negligence. Cf. Cohen v. Sager (1971), 2 Ill.App.3d 1018, 278 N.E.2d 453.\u201d Apato v. Be Mac, 7 Ill.App.3d 1099, 1102, 288 N.E.2d 683, 686.\nThe major issues in the instant case were whether plaintiff was injured and whether the negligence of the defendant was a proximate cause of the injury to the plaintiff. Defendant admitted striking plaintiff\u2019s car and there was no issue as to the negligence and the trial court correctly directed a verdict for plaintiff on the negligence issue. Indeed, during the course of colloquy regarding plaintiff\u2019s motion for a directed verdict, plaintiff\u2019s counsel stated:\n\u201cI am not asking the directed verdict as to whether tire negligence of which [defendant] was found guilty caused this injury. I don\u2019t want that. I think that should always be a jury question, and the nature of the extent of the injury if they accept that there is an injury.\u201d\nThe plaintiffs own evidence is the only explanation of the result; namely the jury returning a verdict finding for defendant and against plaintiff. Plaintiffs testimony was self-contradictory and was, in some material matters, impeached. The jury could have found plaintiff unworthy of belief and his alleged injuries feigned. The testimony of plaintiff\u2019s doctors was such that the jury could not have been compelled to accept it. Plaintiffs argument that the testimony concerning a \u201ccausal relation between plaintiff\u2019s condition of ill being and the accident\u201d is \u201cuncontradicted\u201d is not supported by our examination of the record. From our examination of the record, we cannot say as a matter of law that the jury\u2019s verdict was against the manifest weight of the evidence.\nPlaintiff also argues that the risk of colliding with the rear of plaintiffs vehicle included the risk of precipitating plaintiff\u2019s alleged \u201ctraumatic neurosis\u201d even if the latter was an unforeseeable consequence.\nPlaintiff premises this argument on the opinion expressed by Dr. Harry Gamer that there was a causal relationship between the accident which plaintiff experienced and the subsequent symptom syndrome and disability which Dr. Garner characterized as a \u201ctraumatic neurosis.\u201d\nPlaintiff states that \u201cit is true that plaintiff\u2019s history as a refugee from Poland, via Israel, after a long time in a Nazi concentration camp, the change in his economic condition on arrival in this country and other personal factors of long standing, may have predisposed him to the neurosis\u201d but argues that this accident \u201ctriggered\u201d the neurosis.\nPlaintiff had the burden to establish a causal relationship between defendant\u2019s negligence and his injury by the preponderance of evidence and with reasonable certainty. (Daly v. Bant, 122 Ill.App.2d 233, 258 N.E.2d 382.) In the instant case, whether plaintiffs alleged neurosis was caused by some other \u201cstressful situation\u201d or whether it was, as plaintiff contends precipitated by the accident, was a question of fact to be resolved by the jury. As has been frequently stated, the jurors are the sole judges of the credibility of the witnesses and the weight to be given to their testimony and from our review of the record, we cannot say that the jury\u2019s finding was against the manifest weight of the evidence.\nPlaintiff argues that if the jury did not believe that his neurosis was caused by the accident, it could not disbelieve his proven special damages and out-of-pocket expenses. He concedes, arguendo, that the jury was not obliged to believe that plaintiff\u2019s emotional disorder was a traumatic neurosis caused by the accident but argues that there was other evidence of plaintiffs injury which makes the jury\u2019s verdict untenable.\nPlaintiffs hospital and medical bills were not introduced into evidence. The only testimony concerning plaintiff\u2019s expenses was that of Dr. Alpert that he rendered a bill for services to plaintiff which was \u201caround $850.00, $860.00\u201d and that in his opinion this was \u201ca fair and reasonable amount based on relative and like charges in the City of Chicago by other doctors.\u201d Neither party attempted to segregate the portion of Dr. Alpert\u2019s bill attributable to the alleged \u201cneurosis\u201d apart from the treatment of plaintiff\u2019s alleged \u201cstiff neck and blow to plaintiffs head.\u201d\nFrom our examination of the record, the jury may have concluded that in fact plaintiff did not strike his head and that he did not have a stiff neck. At the trial plaintiff testified that after he struck his head on the windshield, he had a bruise in the right forehead area and that he believed the bruise was discolored and the bump or mark would be visual to persons observing him after the accident. Plaintiff\u2019s testimony is rebutted by other witnesses, including plaintiff\u2019s son, who testified that after the accident they observed no marks on the plaintiff. Moreover,\nDr. Alpert\u2019s testimony that plaintiff sustained a \u201cstiff neck\u201d as a result of the accident was impeached to a degree by the doctor\u2019s admission that he had signed and approved a summary of the hospital records concerning plaintiff dated May 16, 1965 which stated plaintiff\u2019s neck was \u201csupple and non-tender.\u201d\nAs this court stated in Jeffrey v. Chicago Transit Authority, 37 Ill.App.2d 327, 335, 185 N.E.2d 384, 388:\n\u201cIf the jury did not disbelieve the plaintiffs and if their evidence was not discredited we presume verdicts would have been returned commensurate with their testified pains and losses.\u201d\nWe cannot say that the jury\u2019s determination was against the manifest weight of the evidence and can perceive no reason to warrant overturning the verdict.\nTherefore, the judgment is affirmed.\nJudgment affirmed.\nGOLDBERG and EGAN, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE BURKE" } ], "attorneys": [ "William S. Keck, of Herman & Tannebaum, of Chicago, (Sidney Z. Karasik, of counsel,) for appellant.", "Hubbard, Hubbard, O\u2019Brien & Hall, of Chicago, for appellee." ], "corrections": "", "head_matter": "Leon Feldman, Plaintiff-Appellant, v. Irene Fitzpatrick, Defendant-Appellee.\n(No. 56491;\nFirst District (1st Division)\nApril 16, 1973.\nWilliam S. Keck, of Herman & Tannebaum, of Chicago, (Sidney Z. Karasik, of counsel,) for appellant.\nHubbard, Hubbard, O\u2019Brien & Hall, of Chicago, for appellee." }, "file_name": "0617-01", "first_page_order": 639, "last_page_order": 647 }