Opinion
Opinion filed September 16, 1935.
1. VENUE — actions against public, etc., corporations. Statute providing that actions brought against any public, municipal, governmental, or quasi-public corporation may be brought in any county where the corporation is located, construed as relating to "every" or "all" counties in which the corporation has a place of business or exercises its corporate powers (Ill. State Bar Stats. 1935, ch. 110, ¶ 136).
2. STATUTES AND RESOLUTIONS — "any" as equivalent to "every" or "all." The word "any" as used in statutes is equivalent to and has the force of "every" or "all."
3. AUTOMOBILES — jurisdiction of action resulting from collision. In action against a motor bus line for damages sustained when a car in which plaintiff was riding collided with a bus operated by defendant, since evidence showed that bus line was operating in St. Clair county, defendant could not contend that a city court of East St. Louis did not have jurisdiction of the action (Ill. State Bar Stats. 1935, ch. 110, ¶ 136).
4. DAMAGES — loss of capacity to bear children in ordinary manner as element of damages for injuries to woman. In an action for injuries to a woman, loss of capacity to bear children in the ordinary manner is a recognized element of damages.
5. EVIDENCE — presumption that woman has normal faculties to bear children in ordinary way. It is presumed that a woman has the normal faculties to bear children in the ordinary way.
6. SAVING QUESTIONS FOR REVIEW — waiver of objection to instruction to jury. In action for damages for personal injuries sustained by plaintiff while riding as a passenger in a private car when the same collided with a bus operated by the defendant, wherein defendant bus line made no objection to an instruction to the jury that the statute then in force required that a motor vehicle be driven to the left of the center of the beaten track of the highway and that it turn seasonably to the right to pass vehicles approaching from the opposite direction, held that failure to object to such instruction amounted to a waiver of objection thereto (Cahill's Stats. 1933, ch. 95a, ¶ 41).
7. AUTOMOBILES — when instruction, suggested in collision case involving injuries to guest passenger, is properly rejected. In action for damages sustained by plaintiff when, as a guest passenger in an automobile, it collided with one of defendant's buses at an intersection, a suggested instruction defining the duty of a guest passenger to use ordinary care and advising that if she did not do so, when she had an opportunity to take precaution to guard against injuries she would not be entitled to recover, was properly rejected where it failed to define the degree of precaution required.
8. AUTOMOBILES — when refusal of requested instruction, in collision case involving injuries to guest passenger, is not error. In an action for damages sustained by plaintiff while riding as a guest passenger in a car which collided at an intersection with one of defendant's buses, there was no error in refusing to instruct the jury, pursuant to request, that if the car in which plaintiff was riding was being negligently driven, and she knew of such fact and continued to ride therein without objection, the verdict should be for defendant, since only negligence on the part of plaintiff contributing or proximately contributing to the injury would prevent her recovery.
9. INSTRUCTIONS — requisite of instruction whereby court directs particular verdict if jury finds certain facts. Where the court directs a particular verdict if the jury finds certain facts, the instruction must embrace all the facts to which such verdict relates.
10. AUTOMOBILES — when instruction, suggested in collision case involving injuries to guest passenger, is improper. In action for damages to guest passenger in an automobile which collided with one of defendant's buses at an intersection, suggested instruction to jury that if plaintiff failed to warn the driver of the car in which she was riding of danger, such failure would constitute contributory negligence on her part, and that if such failure proximately contributed to the accident the jury should find for defendant, was improper in not limiting the jury to consideration of the danger of collision with defendant's bus and leaving them to conjecture what danger was intended, also assuming that danger was present, the mere fact that the car in which plaintiff was riding was being negligently driven not creating any necessary inference of danger to plaintiff.
11. INSTRUCTIONS — propriety of refusing to instruct concerning legal principle repeatedly stated in charge already given. A legal principle suggested for an instruction for the jury may properly be refused where it has been repeatedly stated in the charge already given.
12. DAMAGES — when award, made to minor female for personal injuries, is excessive. In action for damages for personal injuries sustained when a car in which plaintiff was riding collided with a bus of the defendant company at an intersection, award of $28,500 held excessive notwithstanding the fact that plaintiff sustained five pelvic fractures and suffered much pain and for six months following the injury was confined to her bed, and it appeared that the pelvic area would thereby be decreased and the contour of the body somewhat flatter thereafter, there being a conflict of evidence as to whether or not plaintiff would thereafter be compelled to walk with a limp and would never be able to bear children in a normal way.
13. DAMAGES — award for personal injuries as not predicable on uncertainty or conjecture. Although the determination of a jury as to the amount of unliquidated damages for personal injuries is entitled to great weight and is not lightly to be disturbed, a verdict fixing the compensatory damages at a large sum may not rest upon uncertainty or conjecture and it must appear that the effects claimed are the probable consequences of the injury and reasonably certain to result.
14. NEW TRIAL — when motion, should be sustained because of excessiveness of verdict for personal injuries. Where verdict in trial court for injuries sustained by plaintiff in automobile collision awarded plaintiff $28,500 for such injuries, consisting, for the most part, of five pelvic fractures and suffering of pain, confinement to bed for six months, and a possibility of a permanent limp and permanent disability to bear children in the normal way, held that such verdict was excessive and that the trial court should have sustained a motion for new trial.
15. APPEAL AND ERROR — when excessive award of damages cannot be cured by remittitur. Where damages allowed are so excessive as to indicate that they are the result of sympathy, prejudice or some other improper consideration, the error cannot be cured by a remittitur and the case must be reversed and remanded for a new trial because of findings with respect to other material facts which may have been influenced by such improper elements.
Appeal by defendant from the City Court of East St. Louis; the Hon. WILLIAM F. BORDERS, Judge, presiding. Heard in this court at the May term, 1935. Reversed and remanded. Opinion filed September 16, 1935.
WHEELER, OEHMKE DUNHAM, of East Louis, for appellant.
PHILIP G. LISTEMAN and JOHN M. KARNS, both of East St. Louis, for appellee.
Appellee, a minor, suing by guardian, recovered a verdict and judgment for $28,500 in the city court of East St. Louis, against appellant, for personal injuries sustained by her as the result of a collision between a bus owned by the latter and a car in which appellee was riding as a passenger.
Numerous grounds are assigned for a reversal of the judgment. Appellant, previous to the trial, filed a motion to dismiss the suit, alleging that it was a corporation engaged in carrying passengers for hire; that its principal office was located in Madison county, Illinois, and had never been located in the city of East St. Louis, in the county of St. Clair; and for which reason the said city court was without jurisdiction to hear the cause. The motion was overruled, and appellant, in its answer, incorporated the grounds thereof as a defense to the action. Appellee made no objection to this being done.
The argument in support of the contention is that appellant is a quasi-public corporation, and hence can only be sued under the terms of paragraph 3, sec. 8, art. 2, of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 136, which is: "Actions may be brought against any public, municipal, governmental or quasi-public corporation in any county where the corporation is located"; and that its principal office being in Madison county, action against it can only be brought in such county.
Assuming that appellant is a quasi-public corporation, without, however, expressing any opinion as to whether such is the fact, it seems that the section does not support the claim of appellant. It will be observed that it provides that the action may be brought "in any county where the corporation is located."
In construing statutes, similarly worded, courts have held that the word "any," so used, is equivalent to and has the force of "every" or "all." People v. Van Cleave, 187 Ill. 125, 134; Hopkins v. Sanders, 172 Mich. 227, 137 N.W. 709; Heyler v. City of Watertown, 16 S.D. 25, 91 N.W. 334. Hence it would appear that the legislative intent was that such corporation could be sued in every county in which it was located. Had it been the intent that suit could only be brought in the county where the principal office was located, it would seem that the legislature would have used the word "the" instead of "any" preceding the word "county."
The word "located," as we view the matter, used in conjunction with the expression "any county," refers to all counties in which the corporation has a place of business or exercises its corporate powers; and as the proof shows that appellant was operating in St. Clair county, we think the particular argument made, as to jurisdiction is untenable.
It is urged that the verdict is against the manifest weight of the evidence, and that it should have been set aside by the trial court. We have examined the evidence with care, and while constrained to say that the proof on the question of liability was close, and the jury might have found for either party, depending upon which testimony they believed, we think a fair question of act was raised by the proof, and that the court did not err in refusing to set aside the verdict as contrary to the manifest weight of the evidence.
Claim is made that the court erred in admitting medical testimony that appellee, as a consequence of injuries received in the accident, could never bear children in the normal way.
Such was claimed, in the amendment to the complaint, as one of her damages, and is recognized by the law as a proper element thereof. Budek v. City of Chicago, 279 Ill. App. 410. Appellant urges that such was not competent until there was antecedent proof that she had, previous to the injury, possessed the capacity to normally bear children, and bases its contention upon the theory that if she did not possess such ability, she could not lose it; hence, before showing that she lost such function, it must first appear that she had possessed such power.
In 9 Encyclopedia of Evidence, 894, the rule is stated: "In the absence of circumstances showing the contrary, a person is presumed to be in the possession of the normal faculties of mind and body." One of the normal faculties of womanhood is the ability to bear children in the ordinary way; consequently, within the rule as stated, the presumption existed, in the absence of countervailing proof, that appellee, previous to the injury, possessed such capacity. We think the proof was properly admitted.
The trial court overruled appellant's motion to withdraw from the jury the ninth paragraph of the complaint as amended, which was to the effect that at the time of the accident there was in force in this State, par. 41 of ch. 95a, Cahill's Revised Statutes, and that appellant negligently disregarded same and drove its bus to the left of the center of the beaten track of the highway in question, and against the automobile in which appellee was riding. The section so set forth requires that whenever a motor vehicle on a public highway meets any other vehicle, each shall be turned seasonably to the right of the center of the beaten track of such highway, so as to pass without interference.
The ruling is assigned as error, for the reason that there was no evidence justifying such paragraph being considered by the jury. The answer to this contention is that the court, in its charge to the jury, informed the latter that appellee relied upon the provisions of such paragraph as one of the grounds of recovery. Appellant made no objection to this portion of the instructions, and by the terms of sec. 67 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 195, thereby waived its right to question same as a proper element of the charge. Having permitted the court, without objection, to advise the jury that the paragraph in question was one of the grounds upon which appellee depended to prevail in the suit, we think appellant cannot now claim to have been harmed by the overruling of its motion to strike such portion of the complaint.
The failure of the court to incorporate in its charge four suggestions of appellant is also urged as error; the first of which, defining the duty of a guest passenger to use ordinary care for her own safety, advised that if the driver of the car, at the time of and just before the accident, was negligent and thereby caused or proximately contributed to the injury, that appellee knew of such negligence, "and had an opportunity to do so but did not take precautions to guard against injury," and thereby as a consequence sustained damages, she would not be entitled to recover.
It will be noted that the suggestion recites that if appellee, knowing of the situation, "did not take precautions to guard against injury." The precautions required, under such circumstances, were reasonable and prudent efforts to avoid danger. Grifenhan v. Chicago Rys. Co., 299 Ill. 590, 595. The suggestion did not define the degree of precaution. It should have done so; hence the court properly rejected it.
Number two, among other things, provided that if appellee knew, or, by the exercise of ordinary care, could have known, that the car in which she was riding was being negligently driven, and notwithstanding rode on without objection as to the manner of driving and was thereby injured, and that in so doing she failed to exercise ordinary care for her own safety at the time of and just before the collision, then the verdict should be for the defendant.
It is only the negligence of appellee, which contributed or proximately contributed to the injury, which would prevent her recovery. The suggestion fails to contain such essential element. "Where the court directs a particular verdict, if the jury find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict." Illinois Iron Metal Co. v. Weber, 196 Ill. 526. This the suggestion did not do, and the court was not bound to adopt it.
The third defined the duty of a guest passenger in an automobile, where she has opportunity to learn of danger and avoid it, to warn the driver of the vehicle of such danger, and that she has no right to omit reasonable and prudent efforts to avoid danger; and then requires that if the jury find that the driver was operating the car negligently, that appellee, in the exercise of ordinary care, would have known such, "and if she failed to warn the driver of the Chevrolet of such danger, and if her failure to warn the driver of the Chevrolet was negligence on her part," and as a result it caused or proximately contributed to cause the accident, the jury should find the defendant not guilty. This suggestion is also peremptory in its character, and directs a verdict upon a finding of certain facts. It required appellee to warn the driver, if she, in the exercise of ordinary care, would have known that the car was being negligently driven, "of such danger." It did not limit the jury to danger of collision with appellant's bus, but left them to conjecture what danger was intended. Moreover, it did not require the jury to find that any danger, in fact, existed, but assumed that danger was present. The mere fact that the car was being negligently driven did not create any necessary inference of danger. We think it should have required the jury to find that danger in fact existed; that being peremptory, and lacking an essential element, it was properly refused. Illinois Iron Metal Co. v. Weber, supra.
The last rejected suggestion was to the effect that even if the bus driver was negligent, yet if the jury further found that appellee, by the exercise of ordinary care in looking out for danger, could have avoided the accident complained of, and negligently failed to do so, and thereby caused or proximately contributed to cause the injury, then appellee could not recover. This suggestion correctly stated the law. The principles contained therein, however, were embodied in the charge as given. "A legal principle suggested for an instruction may properly be refused where the same has been repeatedly stated in the charge." England v. Fawbush, 204 Ill. 384; Shorb v. Webber, 188 Ill. 126.
In our opinion the court did not err in refusing to amend its directions as to the law of the case.
As previously observed, the verdict upon which the judgment is based was for $28,500; and appellant earnestly insists that this amount is so excessive as to indicate that the jury were moved by sympathy or prejudice, and that the verdict did not reflect their unbiased judgment.
Appellee, as a result of the accident, sustained five pelvic fractures, and suffered much pain. The proof shows that for six months following the injury she would be obliged to remain in bed, a considerable portion of the time in a cast, and that thereafter she could take light exercise for another six months, following which she would be able to walk freely. It appeared that the bones have united, with no permanent effects therefrom, and that the pelvic area will be decreased and the contour of the body will be somewhat flatter, not noticeable, however, through clothes.
As to the loss or impairment of bodily functions, the proof is sharply conflicting, and expert medical witnesses, who testify for appellee, are at variance and disagree as to same.
Dr. Kaeser, for appellee, the attending physician, testified that in the course of time he was of opinion that she would walk without limping. Dr. Hurd, called at her instance, stated that he thought she would limp, and that such would be permanent. He, however, had not seen the patient, and only testified from an examination of the X-ray plates as to her injuries. Dr. Harrison, a witness for appellant, from a reading of such plates, stated that he saw nothing therein which would cause him to believe that appellee would walk with a limp. Dr. Rives, for appellee, who visited her once, at the instance of her attorneys, evidently for the purpose of qualifying as a witness, and made an examination while she was still in the cast, and who also examined the X-ray pictures, gave it as his opinion that due to the decreased diameter of the pelvis, she would never be able to bear children in a normal way. Dr. Kaeser, appellee's witness, testifying on this proposition, stated that while the pelvic room was decreased as a result of the injury, it would be problematical as to whether such fact would interfere with childbirth.
Thus it is seen that the medical proof, on the two principal items of the claimed damage, is not in accord, and that the doctors differ in their opinions as to the future effects of same.
While the determination of the jury, as to the amount of unliquidated damages, is entitled to much weight, and is not to be lightly disturbed, a verdict fixing the compensatory damages at so large a sum should not rest upon uncertainty or conjecture; but it must appear that the effects claimed are the probable consequences of the injury, and are reasonably certain to result. Lauth v. Chicago Union Traction Co., 244 Ill. 244; Lake Shore M. S. Ry. Co. v. Conway, 169 Ill. 505; Chicago City Ry. Co. v. Henry, 62 Ill. 142.
In view of the uncertainty as shown by the evidence, we feel that the verdict is excessive, and that the court should have sustained the motion for a new trial. Where the damages allowed are so excessive as to indicate they were found as the result of sympathy, prejudice or some other improper consideration, the error cannot be cured by a remittitur, for the reason that the finding of other material facts, essential to the issue, if not the issue itself, may have been influenced by such improper elements. Wabash Ry. Co. v. Billings, 212 Ill. 37; and as held by this court in Lindenberger v. Klapp, 254 Ill. App. 192.
For which reason the judgment is reversed, and the cause is remanded.
Reversed and remanded.