{ "id": 3375211, "name": "George Edward Montgomery, Appellant, v. Henry M. Simon, Appellee", "name_abbreviation": "Montgomery v. Simon", "decision_date": "1941-04-15", "docket_number": "Gen. No. 41,552", "first_page": "516", "last_page": "525", "citations": [ { "type": "official", "cite": "309 Ill. App. 516" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "293 U. S. 474", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3930392 ], "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/us/293/0474-01" ] }, { "cite": "90 Ill. App. 225", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 1673307 ], "opinion_index": 0, "case_paths": [ "/ill-app/90/0225-01" ] }, { "cite": "104 Ill. App. 207", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2584464 ], "opinion_index": 0, "case_paths": [ "/ill-app/104/0207-01" ] }, { "cite": "52 Ill. App. 346", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5105524 ], "opinion_index": 0, "case_paths": [ "/ill-app/52/0346-01" ] }, { "cite": "17 Ill. App. 167", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 867315 ], "opinion_index": 0, "case_paths": [ "/ill-app/17/0167-01" ] }, { "cite": "144 Ill. App. 270", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2668732 ], "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-app/144/0270-01" ] }, { "cite": "306 Ill. App. 486", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5570464 ], "pin_cites": [ { "page": "489, 490" } ], "opinion_index": 0, "case_paths": [ "/ill-app/306/0486-01" ] }, { "cite": "275 Ill. App. 193", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3285188 ], "pin_cites": [ { "page": "198, 199" } ], "opinion_index": 0, "case_paths": [ "/ill-app/275/0193-01" ] } ], "analysis": { "cardinality": 836, "char_count": 16566, "ocr_confidence": 0.51, "pagerank": { "raw": 3.1022100354383165e-07, "percentile": 0.859421147719423 }, "sha256": "f14228c86b8e29d73cfc448c0d4f17c81d1f68b299b8081c8cc01c03e4369f03", "simhash": "1:8ca8929fde644e7a", "word_count": 2862 }, "last_updated": "2023-07-14T17:28:11.862666+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George Edward Montgomery, Appellant, v. Henry M. Simon, Appellee." ], "opinions": [ { "text": "Mr. Justice Scanlan\ndelivered the opinion of the court.\nAn action brought against defendant to recover damages for personal injuries sustained by plaintiff on June 4, 1938, when the automobile being driven by the latter was struck by the automobile being driven by defendant, at the intersection of Cermak road, a State highway, and First avenue, in the Village of North Riverside, Illinois. A jury returned a verdict for plaintiff assessing his damages at the sum of $2,000. Plaintiff filed a motion for a new trial. Defendant did not make a motion for a new trial. Plaintiff\u2019s motion for a new trial was denied and judgment was entered upon the verdict. Plaintiff appeals.\nDefendant offered no evidence. Plaintiff contends that as the result of defendant\u2019s negligence he sustained serious, painful and permanent injuries, which have incapacitated him for life, and have caused him to spend large sums of money for medical services ; that the damages awarded are so shockingly inadequate as to be an affront to justice, and that the trial court committed grievous error when it denied plaintiff\u2019s motion for a new trial. Defendant is satisfied with the verdict and contends that the amount allowed by the jury is adequate and the judgment should be affirmed.\nAfter an examination of the evidence bearing upon the question of damages we have reached the conclusion that plaintiff\u2019s contention is clearly a meritorious one.\nThe accident happened on June 4, 1938, about 2 p.m. Plaintiff was driving west on Cermak road. As he approached the intersection of the road and First avenue, he slowed down to about twenty-five miles per hour. Defendant, an automobile salesman, was proceeding\u2019 north on First avenue, driving a new Nash automobile. He was on his way to keep an appointment with a prospective customer in Oak Park. Three hundred feet south of Cermak road on First avenue there was a \u201ccaution\u201d sign, warning that there was a \u201cstop\u201d sign ahead. There was a stop sign for traffic going north on First avenue located on the southeast corner of the intersection. Defendant disregarded the signs, failed to reduce his speed, and, according to the great weight of the evidence, drove across the intersection at a speed of about forty miles per hour. As defendant drove across the intersection plaintiff\u2019s car had just crossed the center line of First avenue. Defendant\u2019s car struck plaintiff\u2019s car on the left side between the door post and the rear fender with such speed and force that as a result of the impact plaintiff\u2019s car was thrown to the right in a northwesterly direction. It then hurtled a ditch adjoining the highway, rolled forward, and came to a stop in the middle of a field of recently plowed soft dirt, about seventy-five or a hundred feet from the point of the impact. Several WPA men, working in the field, saw the accident and rushed to the place where plaintiff\u2019s car had stopped. Their attempt to extricate plaintiff from the car was not immediately successful because the door leading to the driver\u2019s seat was caved in and could not be opened. Plaintiff was unconscious and had to be lifted out. The WPA men attempted to revive him by throwing \u201ca couple of buckets of water\u201d over his head but they were not successful. While plaintiff was still unconscious he was taken to the Hines Memorial hospital, in Hines, Illinois. What treatment he was given at the Hines hospital is not shown by the record. Shortly after 2 p. m. on the same day plaintiff was removed to the Peterson clinic, in Brookfield, Illinois, where he was examined by Dr. Philip Peterson. The doctor testified that plaintiff was in a semi-comatose state at the time; that he had several bruises and injuries about the head and face; a bruise at the left arm, and a bruise at the left knee; that he had an injury of the nose and he gave him first aid treatment to the nose. Under the direction of Dr. Peterson a number of X-ray pictures were then taken. These pictures were produced in evidence. The doctor testified that one picture showed a com-minuted fracture of the bony structure of the nose on the left side; another showed \u201ca linear fracture of the occipital region of the skull;\u201d still another showed \u201ca slight compression fracture of the lower border of the third lumbar vertebra.\u201d The doctor ordered that plaintiff be taken home and kept in bed for an indefinite period. He remained under the general care of Dr. Peterson from June 4, 1938, until December, 1939. At the time plaintiff was taken home he was still in a semi-comatose state, which condition persisted for a number of days. Later on the doctor prescribed medicine to relieve pain and continued to give plaintiff this medicine as long as he treated him. Plaintiff had \u201cpain in the back and soreness and pain in the head; also headaches.\u201d The doctor \u201cprescribed rest in bed. He was in bed for at least two weeks. \u2019 \u2019 After that plaintiff was up part time. During the late summer and fall of 1938 plaintiff was given, at the doctor\u2019s office, three X-ray treatments and heat treatment by machine for the relief of pain. In December, 1939, the doctor found that plaintiff \u201chad a spasm, a tightness of the right leg.\u201d Plaintiff was then given three diathermy treatments to the right leg; also prescriptions for medicine to relieve pain. The doctor testified that his hill for services amounted to $135. On the evening of the accident after plaintiff had been brought home in an ambulance from the Peterson clinic he was bleeding from the eyes, nose, mouth and ears, and Dr. Weber, of LaG-range, a specialist, was called to treat these conditions. Dr. Weber testified that he was a specialist in the treatment of the eye, ear, nose and throat; that he saw plaintiff on the evening of June 4, 1938, and upon examination he found that plaintiff had a fractured nose; \u201cthe septum in his nose which is a partition, was quite pushed over to one side and on examination you get crepitice and that is when you get this feeling that there is a broken bone there.\u201d The doctor set the fracture. He also found that plaintiff had some small pieces of glass in his eyes, and he \u2018' extricated\u201d all of the glass. The next day the doctor found that plaintiff\u2019s eyes were infected and in pretty bad condition. He saw plaintiff seven times and was paid $55 for his services. During the first four weeks immediately following the accident plaintiff was attended by a practical nurse. In the year 1939 his sister \u201ccared\u201d for him. During the year 1938 Dr. Linnell, an osteopath, treated plaintiff. For a week the doctor went to the home of plaintiff, then plaintiff went to the doctor\u2019s office. The doctor gave plaintiff ten treatments, one a day. In the summer of 1939 plaintiff\u2019s physical condition was becoming worse and in December he visited the Warren clinic, in Michigan City, Indiana, for treatment. Five additional trips were made by plaintiff to this clinic. Dr. Warren testified that he had conducted the clinic for forty-four years; that on December 29, 1939, he examined plaintiff; that he found that plaintiff \u201chad a partial paralysis of the right leg, a traumatic neuritis of the leg.\u201d In response to a hypothetical question the doctor stated that in his opinion there could be a causal connection between the accident and the condition of paralysis of the right leg. In response to a second hypothetical question the doctor testified that the condition of paralysis of the right leg, in his opinion, is permanent. The doctor further testified that he gave plaintiff intravenous treatments of potassium iodide, sodium salicylate and colchicine every second day in order to absorb anything in the brain that might be pressing, and that this treatment extended over a period of four weeks; that in addition plaintiff was treated in the bath department, with heat packs and physio-therapy for the pain in his leg and back. Upon cross-examination he testified that in his opinion nothing \u201cwould cure the man in the condition I found him; \u2019 \u2019 that the treatments given him and the medicines given him were merely for the purpose of relieving pain and inducing sleep. The doctor further testified that the bill of the clinic (Dr. Warren) for services rendered was $200. There was an additional bill for $116.05 of the clinic (hospital).\nDr. Benjamin Kessert testified that he was connected with the neuro-psychiatric department of the Edward Hines hospital and was also on the faculty of the Northwestern University Medical School; that his practice concerned diseases of the nervous system; that he examined plaintiff in March, 1940, at the office of Dr. Costenbader, in LaGfrange, Illinois; that he made certain objective findings; that \u201cmy objective findings were those of the left facial weakness and weakness of the grip power in his left hand, a swelling and discoloration of the right lower extremity; the discoloration was manifested by generalized flushing; there was limitation of motion in the right lower extremity, the deep tendon reflexes in the right lower extremity were absent, as compared to the opposite side.\u201d The doctor further testified that he \u201cprescribed physiotherapy treatments and potassium iodide, by mouth, medication. Q. For what purposes were those medicines and that type of treatment given? A. The physio-therapy was prescribed for the condition of Ms right lower extremity and the potassium iodide was prescribed for the condition of the head.\u201d\nDr. James C. Clark testified that he examined plaintiff for the Prudential Insurance Company on March 30, 1940; that he found \u201ca stiffness wMch means spastic paralysis, it means a rigid paralysis of the right leg, partial paralysis of the right leg;\u201d that plaintiff walked with a crutch; that \u201cthe reflexes in the left leg were normal, those in the right leg were abnormal and exaggerated;\u201d that \u201cother findings I made were a swelling of the right leg, the right leg was swollen more than the left, that is certainly objective and there was some increased temperature in that leg over the left leg. As I said before, the leg was stiff, more rigid than normal and the reflexes were exag*g*erated; \u2019 \u2019 that the rest of his finding\u2019s were not objective. The doctor further testified: \u201cMy opinion from my examination of Mr. Montgomery on March 30, 1940, is that he was not able to perform any manual employment. \u2019 \u2019\nWe will epitomize some of the salient evidence given by plaintiff, his wife and son: Plaintiff was fifty-five years of age at the time of the accident and his condition prior to the accident \u201cwas perfect.\u201d He was the owner of a \u201cbuilding material and coal yard.\u201d He managed the business and also acted as a salesman. Most of the time prior to the accident he worked from twelve to fifteen hours a day. At the time of the accident his weight was 200 pounds; at the time of the trial he weighed 155 pounds. For six weeks after the accident he remained in bed. After that time he was up during the day, at first for an hour or so until gradually he remained up \u201calmost a full daytime.\u201d At first he used a cane in walking and afterward a crutch. He never had any trouble with the right leg prior to June 4, 1938, but he had trouble with it right after the accident. \u201cI couldn\u2019t make it start to walk. I first noticed this when I first got out of the car after I was up and around. When I attempted to use the leg* for walking* it just stood still. It wouldn\u2019t walk for a minute or so before I could get it moving.\u201d He suffered pain constantly. His head and back bothered him all the time; he felt as though he had been hit with a blunt instrument on top of the head. The pain in his back he described as \u201clike a toothache.\u201d His leg pained him \u201cfrom the toe up to the hip;\u201d \u201cit is there all the time. I do not sleep nights.\u201d In September, 1938, plaintiff went to his place of business for short periods, increasing the time gradually until he stayed there almost a full daytime. He answered the telephone but did no manual work. He was not able to go to his place of business after December 1, 1939. During 1939 he did not go to the office every day and during* the last few months of that year he would be at the office only a few hours a day, when he would lie down on a couch. As a result of the accident Mrs. Montgomery was compelled to put on salesmen to do the work that had been performed by plaintiff before the accident.\nThe evidence showed that plaintiff paid to doctors and a nurse, $606.05. Evidence was also introduced to the effect that plaintiff suffered a loss in earnings and income of $1,090. Plaintiff also paid for medicines, but we find no evidence in the record as to the amounts paid. It thus appears that the jury awarded plaintiff for past and future pain and suffering ; permanent physical disability, making gainful employment by plaintiff impossible; loss of future earnings and income, and future expenses for medical services, approximately $300. As plaintiff\u2019s counsel argues, the amount of the verdict is so inadequate that it shocks one\u2019s sense of justice. We 'have been endeavoring to ascertain, from the record, if possible, what could have caused the jury to award plaintiff such inadequate damages. The only reason we can find in the record is the following: Dr. James C. Clark, a witness for plaintiff, whose testimony has been heretofore referred to, examined plaintiff, in his home, for the Prudential Insurance Company on March 30, 1940. As heretofore stated, the doctor testified to the partial paralysis of the right leg that he found, and further stated that he was of the opinion that plaintiff was not able to perform any manual employment. It may be that the jurors, from the doctor\u2019s evidence, assumed that plaintiff had a policy with the Prudential Insurance Company and that he was receiving*, or would receive, compensation from that Company, and that this assumption influenced them to reduce the amount of damages that they otherwise might have awarded plaintiff. There was nothing in the record to show that plaintiff was receiving or might receive compensation from the Insurance Company, but even if the record showed that he was receiving* compensation from that Company, such compensation could not in any way affect his right of compensation against defendant.\nIt is the settled law of this State that where it is obvious that a jury has failed to take into consideration proper elements of damages which have been clearly proven, and have awarded the plaintiff wholly inadequate damages, a motion for a new trial should be sustained by the trial court. (See Browder v. Beckman, 275 Ill. App. 193, 198, 199; Parke v. Lopez, 306 Ill. App. 486, 489, 490.) In Kilmer v. Parrish, 144 Ill. App. 270, 274, the court said: \u201cAt common law new trials were not allowed upon the ground that the damages allowed by the jury in actions for torts were insufficient. But the modern rule is that a new trial may be granted where the verdict is grossly inadequate, for the same reasons as those governing where the verdict is excessive. Paul v. Leyenberger, 17 Ill. App. 167; Hackett v. Pratt, 52 Ill. App. 346; Hamilton v. Pittsburg, C., C. & St. L. Ry., 104 Ill. App. 207; Bourke v. Anglo-American Provision Co., 90 Ill. App. 225; 14 Encyc. of Pl. & Pr. 764, and cases cited. A verdict for a grossly inadequate amount stands on no higher ground on legal principles than a verdict for an excessive or extravagant amount.\u201d In Dimick v. Schiedt, 293 U. S. 474, 486, the court said: \u201cWhere the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages.\u201d Many other cases to the same effect might be cited, but the rule stated is well established. In the instant case defendant offered no evidence as to the accident, nor as to plaintiff\u2019s injuries, and it would amount to a miscarriage of justice to allow the present judgment to stand.\nThe judgment of the Circuit court of Cook county is reversed and the cause is remanded for a new trial.\nJudgment reversed and cause remanded for a new trial.\nFriend, P. J., and John J. Sullivan, J., concur.", "type": "majority", "author": "Mr. Justice Scanlan" } ], "attorneys": [ "Gariepy & Gariepy, of Chicago, for appellant; Fred A. Gariepy and John Spalding, of Chicago, of counsel.", "Corwin D. Querrey and Joseph Harrow, both of Chicago, for appellee." ], "corrections": "", "head_matter": "George Edward Montgomery, Appellant, v. Henry M. Simon, Appellee.\nGen. No. 41,552.\nOpinion filed April 15, 1941.\nGariepy & Gariepy, of Chicago, for appellant; Fred A. Gariepy and John Spalding, of Chicago, of counsel.\nCorwin D. Querrey and Joseph Harrow, both of Chicago, for appellee." }, "file_name": "0516-01", "first_page_order": 572, "last_page_order": 581 }