{ "id": 3561093, "name": "DOROTHY HENDERSON, Plaintiff-Appellant, v. HARRY W. HUDSON et al., Defendants-Appellees", "name_abbreviation": "Henderson v. Hudson", "decision_date": "1984-01-05", "docket_number": "No. 83\u201416", "first_page": "780", "last_page": "786", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 780" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "449 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590563 ], "pin_cites": [ { "page": "724-25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0720-01" ] }, { "cite": "373 N.E.2d 1332", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1335" } ], "opinion_index": 0 }, { "cite": "71 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448551 ], "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0013-01" ] }, { "cite": "394 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "725" } ], "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 62", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3280920 ], "weight": 4, "pin_cites": [ { "page": "67" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0062-01" ] }, { "cite": "438 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "91 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091790 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/91/0375-01" ] }, { "cite": "416 N.E.2d 1161", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 1033", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5533026 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/1033-01" ] }, { "cite": "345 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2716167 ], "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0259-01" ] }, { "cite": "428 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "195" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3083654 ], "year": 1976, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0380-01" ] }, { "cite": "413 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1352" }, { "page": "1351" } ], "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 4", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3152712 ], "weight": 2, "pin_cites": [ { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0004-01" ] } ], "analysis": { "cardinality": 668, "char_count": 14961, "ocr_confidence": 0.734, "pagerank": { "raw": 1.588849274093254e-07, "percentile": 0.6817542258255211 }, "sha256": "a7cf0bac00c3235fa70dc1ee0bfe5a6bad0252b9ae256c7e145977e235d7be53", "simhash": "1:ababb40c5f8fddb6", "word_count": 2466 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOROTHY HENDERSON, Plaintiff-Appellant, v. HARRY W. HUDSON et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE KASSERMAN\ndelivered the opinion of the court:\nPlaintiff, Dorothy Henderson, brought an action against defendants, Harry Hudson and John Barnes, to recover damages sustained in a motor vehicle collision. A jury found that 95% of the negligence involved in the collision was attributable to plaintiff and entered a verdict in the amount of $1,155. Plaintiff appeals and claims that: (1) the verdict was against the manifest weight of the evidence; (2) the trial court erred by refusing to allow rebuttal examination of an occurrence witness; (3) certain instructions were erroneously given or omitted; and (4) the damages awarded were inadequate.\nIt was stipulated at trial that on the afternoon of May 5, 1981, plaintiff was driving her car in an easterly direction on Illinois Route 13, which is a divided four-lane highway, and that she was approaching the intersection with Carterville Road within Williamson County. It was further stipulated that, at this time, defendant Barnes was also traveling on Illinois Route 13 in the same direction and vicinity as plaintiff and that he was driving a tractor-semitrailer owned by defendant Hudson.\nAccording to plaintiff, as she approached the intersection of Illinois Route 13 and Carterville Road in the right-hand lane, there were two cars in front of her but the left lane was clear. Plaintiff said she observed defendants\u2019 truck in the left-hand lane when she looked in her rearview mirror, turned her turn signal on and then moved into the left lane of traffic in front of defendants\u2019 truck. Plaintiff testified that when she was several car lengths from the intersection, the traffic light turned red. Plaintiff\u2019s car stopped and defendants\u2019 truck struck the rear of plaintiff\u2019s car.\nJohn Barnes, defendant, testified that he was driving in the left lane of Illinois Route 13 as he approached the intersection with Carter-ville Road. Mr. Barnes stated that plaintiff was driving in the right lane a short distance in front of him and that there were no vehicles traveling in front of plaintiff. According to Mr. Barnes, when he was about 50 feet from the intersection, plaintiff moved into the left lane without any signal and began to stop. Mr. Barnes said he blew his horn and applied his brakes but was unable to stop and, consequently, struck plaintiff\u2019s car in the rear.\nKeith Bonnefield, who was an employee at a gas station located at the corner of the intersection of Illinois Route 13 and Carterville Road, testified that when he heard the sound of a horn, he looked up and observed plaintiff\u2019s automobile moving slowly in front of defendants\u2019 truck and then saw the collision take place. Mr. Bonnefield said the traffic light was yellow and that there were no vehicles in the right lane at the time of the impact.\nAfter the defense rested, the trial court granted plaintiff leave to recall Mr. Bonnefield in rebuttal. Plaintiff\u2019s counsel examined Mr. Bonnefield regarding photographs of the area where the collision occurred and then attempted to examine him regarding a prior statement. Defense counsel objected to the inquiry as to Mr. Bonnefield\u2019s prior statement on the ground that it was \u201cnot proper rebuttal.\u201d The trial court sustained defense counsel\u2019s objection.\nMark Ross, another employee of the gas station located at the intersection where the collision occurred, testified that he saw plaintiff\u2019s car change lanes just prior to the collision. Mr. Ross said plaintiff\u2019s car pulled into the left lane in front of defendants\u2019 truck and proceeded to stop and that the truck sounded its horn and then collided with plaintiff\u2019s vehicle. Mr. Ross indicated that the traffic light was yellow at the time of impact and said that he observed no vehicles in the right lane at the time plaintiff\u2019s car changed lanes.\nRoger Watkins, who was driving on Illinois Route 13 approximately five or six car lengths behind plaintiff\u2019s car and defendants\u2019 truck, testified that as the traffic light changed to yellow, plaintiff, with no one in front of her and without a turning signal, suddenly cut into the left lane and that the truck could not stop. Mr. Watkins stated that plaintiff\u2019s car was three or four car lengths in front of the defendants\u2019 truck at the time of the lane change. Mr. Watkins further testified that the traffic light was red at the time of the collision.\nAmong the instructions given to the jury were Illinois Pattern Jury Instruction (IPI), Civil, No. A20.01 (1981 Supp.), which sets forth issues raised by the pleadings when there are multiple defendants. The trial court also gave the jury IPI Civil No. A45.06 (1981 Supp.), a modified general verdict form applicable to comparative negligence cases. The trial court refused, however, to give the jury plaintiff\u2019s instruction No. 23, which stated:\n\u201cWe, the Jury, find for the Plaintiff and against all of the Defendants and assess the Plaintiff\u2019s damages: for disability, present and future, in the amount of $_; for pain and suffering, present and future, in the amount of $_; for medical and out-of-pocket expenses, present and future, in the amount of $_; and for wage loss, present and future, in the amount of $__\u201d\nThe jury found that the total amount of damages suffered by plaintiff was $23,100 and that the percentage of negligence attributable to the plaintiff was 95%. After reducing the total damages sustained by plaintiff by the percentage of negligence attributable to plaintiff, the jury\u2019s award amounted to $1,155.\nPlaintiff asserts that \u201cthe diminuation [sic] of damages, attributed to plaintiff\u2019s negligence, is perverse, unreasonable and against the manifest weight of the evidence.\u201d In support of this argument plaintiff refers to the testimony regarding the collision and relies on the evidence that Roger Watkins testified that the traffic light was red at the time of the collision and that Mr. Barnes, the driver of the truck, was blind in his left eye. We conclude, however, in light of all the evidence presented, that the jury\u2019s determination that plaintiff was 95% negligent in this case was neither unreasonable nor against the manifest weight of the evidence.\nPlaintiff also complains that the trial court erred by refusing to allow rebuttal examination of defense witness Keith Bonnefield regarding a prior statement which was not mentioned on either direct, cross, or redirect examination. The applicable rule is that the allowance of rebuttal evidence lies within the discretion of the trial court, and the trial court\u2019s ruling will not be set aside absent an abuse of discretion. (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 11, 413 N.E.2d 1345, 1352.) In the instant case, we find no abuse of discretion because the alleged rebuttal evidence does not in any way explain, repel, contradict or disprove evidence introduced during defendant\u2019s case in chief. See 91 Ill. App. 3d 4, 11, 413 N.E.2d 1345, 1351.\nPlaintiff next contends that the trial court erred by giving defendants\u2019 instruction No. 18 which was IPI Civil No. A20.01. Plaintiff\u2019s argument on appeal is, basically, that the instruction \u201cwas prejudicial to the plaintiff, in that the jury was unconstrained in finding negligence of plaintiff and was constrained in finding negligence of defendants.\u201d No such argument was raised by plaintiff at the conference on instructions and, therefore, the objection to the instruction complained of has been waived on appeal. Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 387, 428 N.E.2d 190, 195; LaPlaca v. Gilbert & Wolf Inc. (1976), 37 Ill. App. 3d 259, 262, 345 N.E.2d 774, 776.\nPlaintiff further maintains that defendants\u2019 instruction No. 7, which is IPI Civil No. A45.06, \u201cis phrased so that the burden of proof with regards to comparative negligence appears to be upon the plaintiff.\u201d Again, this specific objection was not raised in the trial court and is waived. Stephenson v. Dreis & Krump Manufacturing Co.; LaPlaca v. Gilbert & Wolf Inc.\nFinally, plaintiff urges that the trial court erred by refusing her instruction No. 23. She points out that under section 2 \u2014 1109 of the Civil Practice Law, when damages are assessed by a jury, \u201c*** the verdict shall be itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any.\u201d (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1109.) Plaintiff further observes that instructions similar to her instruction No. 23 have met with approval from Illinois courts. Powers v. Illinois Central Gulf R.R. Co. (1981), 92 Ill. App. 3d 1033, 416 N.E.2d 1161, affd in part, rev\u2019d in part (1982), 91 Ill. 2d 375, 438 N.E.2d 152; Doering v. Janssen (1979), 76 Ill. App. 3d 62, 394 N.E.2d 721.\nDefendants maintain that it is not mandatory that the type of instruction tendered by plaintiff be given to comply with section 2 \u2014 1109 of the Civil Practice Law and point out that there is no Illinois Pattern Jury Instruction to conform with the statute. Alternatively, defendants urge that the trial court\u2019s failure to give plaintiff\u2019s instruction No. 23 amounts to harmless error only.\nWe agree with plaintiff\u2019s assertion that the trial court erred by refusing to give her instruction No. 23, which required that the jury verdict be itemized to reflect the monetary distribution between economic and noneconomic loss. The instruction, although non-IPI, is supported by both statute and case law.\nSection 2 \u2014 1109 of the Civil Practice Law provides:\n\u201cIn every case where damages for injury to the person are assessed by the jury the verdict shall be itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any.\u201d (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1109.)\nWe note that the act plainly states that the verdict \u201cshall\u201d be itemized. Such language is generally regarded as being mandatory. (Cf. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335.) More importantly, we are of the opinion that the legislative history of section 2 \u2014 1109 suggests a mandatory interpretation of the use of the word \u201cshall.\u201d (See Doering v. Janssen (1979), 76 Ill. App. 3d 62, 67, 394 N.E.2d 721, 725.) We therefore reject defendants\u2019 contention that the giving of such instruction cannot be considered as being mandatory.\nThe courts of Illinois previously have considered the application of section 2 \u2014 1109 (formerly section 65.1 of the Civil Practice Act) on two occasions in which it was determined that it was not error for a trial court to give an instruction that required the verdict to be itemized as plaintiff requested in the case at bar. (Doering v. Janssen (1979), 76 Ill. App. 3d 62, 394 N.E.2d 721; Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152.) We are aware of no case, however, in which it has been held that the failure to instruct the jury to itemize its verdict as required by section 2 \u2014 1109 is erroneous. No reason is suggested by defendants as to why the plain wording of section 2 \u2014 1109 should be ignored other than their argument that its provisions are not mandatory and that no Illinois Pattern Jury Instruction has been promulgated to conform with the statute. We find such arguments to be unpersuasive and conclude that the failure to instruct the jury in compliance with section 2 \u2014 1109 constitutes prejudicial error and requires reversal of the award of damages in the instant case.\nFurthermore, since the legislative intent in adopting section 2 \u2014 1109 \u201cwas to require jurors to carefully consider the purpose for which each dollar in damages was awarded\u201d (Doering v. Janssen (1979), 76 Ill. App. 3d 62, 67; see also Powers v. Illinois Central Gulf R.R. Co.), we cannot adopt defendants\u2019 contention that the failure to instruct pursuant to section 2 \u2014 1109 of the Civil Practice Law was harmless when, as in the instant case, a proper request to do so is made. (Cf. Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 724-25, 449 N.E.2d 250, 253.) As stated in the Historical and Practice Notes to section 2 \u2014 1109, one of the twin purposes for the passage of section 2 \u2014 1109 was \u201cthat more information [contained in the jury verdict] will lead to a larger number of successful challenges to the nature or amount of damages awarded.\u201d (Ill. Ann. Stat., ch. 110, par. 2 \u2014 1109, Historical and Practice Notes, at 829 (Smith-Hurd (1983).) That expectation was not fulfilled in the case at bar. Plaintiff in this appeal urges that the damages awarded to her by the jury were inadequate. The trial court\u2019s refusal to give plaintiff\u2019s instruction No. 23 renders it impossible properly to evaluate the sufficiency of the damages awarded. Such error cannot be said to be harmless; therefore, a new trial should be granted on the issue of damages.\nSince we have concluded that it was reversible error for the trial court to refuse plaintiff\u2019s tendered instruction No. 23, we need not address the other issue relating to damages raised by this appeal.\nFor the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed in part and reversed in part and this cause is remanded for a new trial on the issue of damages only.\nAffirmed in part; reversed in part and remanded.\nJONES and EARNS, JJ., concur.", "type": "majority", "author": "JUSTICE KASSERMAN" }, { "text": "SUPPLEMENTAL OPINION ON REHEARING\nJUSTICE KASSERMAN\ndelivered the opinion of the court:\nHaving granted plaintiff\u2019s petition for rehearing, we have reconsidered this cause without oral argument. In her petition for rehearing, plaintiff urges that the defense of comparative negligence rests \u201cpart and parcel\u201d within the issue of damages, so as to be included in the new trial on damages. Defendants, on the other hand, contend that under this court\u2019s original opinion the trial court is not to allow any proceedings on the defense of comparative negligence. We agree with defendants.\nUpon retrial as to damages the issue should be limited solely to the amount of plaintiff\u2019s damages, with the itemization of the verdict to be made by the jury as directed in our original opinion. The finding of the original jury as to the amount of plaintiff\u2019s comparative negligence should then be applied to the new finding as to the amount of plaintiff\u2019s damages. We reject plaintiff\u2019s contention that the amount of plaintiff\u2019s comparative negligence is intertwined with the amount of the damages so as to prevent a retrial as to damages without also a retrial as to the percent of plaintiff\u2019s comparative negligence.\nFor the foregoing reasons, the judgment of the circuit court of Williamson County is reversed and this cause is remanded for a new trial consistent with this opinion.\nReversed and remanded.\nJONES and KARNS, JJ., concur.", "type": "rehearing", "author": "JUSTICE KASSERMAN" } ], "attorneys": [ "Freddy L. Shapiro, of Murphysboro, for appellant.", "William J. Novick, of Fowler & Novick, of Marion, for appellees." ], "corrections": "", "head_matter": "DOROTHY HENDERSON, Plaintiff-Appellant, v. HARRY W. HUDSON et al., Defendants-Appellees.\nFifth District\nNo. 83\u201416\nOpinion filed January 5, 1984.\nSupplemental opinion filed on rehearing March 2, 1984.\nFreddy L. Shapiro, of Murphysboro, for appellant.\nWilliam J. Novick, of Fowler & Novick, of Marion, for appellees." }, "file_name": "0780-01", "first_page_order": 802, "last_page_order": 808 }