dissenting:
I respectfully dissent from the majority opinion. First, the majority fails to address the issue raised by the plaintiffs of whether the jury's verdict is inconsistent with regard to its award for disability. I cannot agree with plaintiffs’ suggestion that their proof is wholly uncontested as to this issue.
The evidence shows that plaintiffs’ vehicle sustained minor damage and was not repaired. The Kumoreks did in fact drive the car immediately following the accident. Although Diana Kumorek testified that she stayed in bed for a few days after the accident, and was hospitalized for four days as a result of the accident, scant evidence was presented showing that she could not perform her daily duties as a housewife. She testified that in June of 1984 her physical well-being was such that she could start lifting small items. She stated that at that time she was unable to vacuum, but could make a bed “as long as I watched how I bent, how I raised up. The treatments were keeping the muscles relaxed enough that I was able to go back to a mild routine.” At the time of the trial Ms. Kumorek was working as a secretary. She did not claim to have been impaired in her ability to do her job or to have missed work because of her injuries. In light of the evidence, I believe the jury’s failure to compensate her for disability may have been the result of its assessment of plaintiff’s proof and the credibility of the testimony presented at trial. The question of what evidence to believe and what evidence to reject is a decision for the trier of fact, whose determination will not be upset on review unless manifestly erroneous. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 725, 504 N.E.2d 781, 787.) The resolution of the conflict here was properly within the jury’s province.
As for the disability claimed to have been suffered by Mike Kumorek, he testified that he was unemployed at the time of the accident. About one week following the accident he took a job as a maintenance man, working one day a week. He testified that approximately three weeks after the accident he helped his father roof his house, and at that time he first noticed his hand begin to tingle and go numb. Prior to the surgery on his wrist, Mr. Kumorek took a job with a construction firm. He testified that as a result of the surgery he was unable to return to work for eight weeks. Dr. Barrow, the orthopedic surgeon who performed the surgery on his wrist, testified that in the several hundred surgeries he has performed relating to carpal tunnel syndrome, very few resulted from automobile accidents. He conceded that it ordinarily takes more than five or six months to develop the type of scar tissue that Mr. Kumorek had, and that it is possible that Kumorek had the scar tissue before the accident. Dr. Barrow testified that if he had not been given the patient’s history, as related to him by Mike Kumorek, in his opinion it would be likely that Mr. Kumorek had the scar tissue before the auto accident. Again, in view of the conflicting evidence as to whether or not the carpal tunnel syndrome was a result of the auto accident, I would decline to disturb the decision of the jury in rendering its verdict as to this element of damages. Hall, 152 Ill. App. 3d at 725, 504 N.E.2d at 787.
Likewise, the evidence as to the disability suffered by Mike Kumorek as a result of his neck injury is conflicting. Mike Kumorek testified that in performing his duties at work, the pain in his neck would cause severe headaches to the point where he would have to stop whatever he was doing and “see if the headache would go away.” In January of 1986 Mr. Kumorek took a job as a farmhand. At the time of trial in June of 1987, he was still employed in this occupation. He testified that in his work as a farmhand, he has a headache at least every day. Mr. Kumorek denied that he was absent from work because of these headaches, but testified that he is generally able to control or stop them with Tylenol. When asked whether he experiences these headaches after he has been working on a tractor looking over his shoulder for extended periods, Mr. Kumorek testified, “Well, after 10 to 15, 12 hours a day looking behind you, you’re bound to have a headache.” There was no evidence presented showing that Mike Kumorek had ever missed work or that he was incapable of performing his work as a result of his neck injury. Based on the foregoing, I would not disturb the jury’s verdict with regard to its award for disability.
The majority bases its decision to reverse on what it believes is an inconsistent verdict where the jury awarded compensation for medical expenses yet no award was given for pain and suffering. In order to determine whether the jury verdict on the amount of damages is inadequate, we must consider the record as a whole. (Ford v. Baker (1978), 61 Ill. App. 3d 45, 47, 377 N.E.2d 853, 854.) It is only where the jury had no reasonable basis for its verdict and the award is obviously inadequate that the reviewing court will set aside the verdict. Ford, 61 Ill. App. 3d at 48, 377 N.E.2d at 855.
The jury by its verdict acknowledged that plaintiffs received injuries as a result of the accident. The jury heard testimony of the plaintiffs as to their physical infirmities before the accident and the state of health of the plaintiffs after the accident. On cross-examination Ms. Kumorek testified that prior to the accident she had seen Dr. Felts, a chiropractor, for a pinched nerve in her neck. Prior to the accident Ms. Kumorek was also treated for sinus headaches by Dr. Leach. When asked whether she had been involved in any accidents prior to the one at bar, Ms. Kumorek testified that in 1981 she injured her left side when she fell out the door of their trailer onto a concrete block. She was hospitalized and treated for the injuries she sustained in that accident. Counsel for the defense then referred Ms. Kumorek to her deposition testimony of 1984 wherein, when asked what her complaints were after falling out of the trailer, she was quoted as saying, “I believe it was my right side.” On further inquiry, Ms. Kumorek testified that she did not recall which side it was that she injured in her fall. The jury heard Dr. Leach testify that although “some sort of trauma” caused Ms. Kumorek’s condition of ill-being, his opinion that the auto accident was the direct cause of her condition was based on the history provided to him by Diana Kumorek.
Evidence was presented as to Diana Kumorek’s post-occurrence activities. She testified that in June of 1984 she was able to return to a “mild everyday routine.” The jury heard her testify that in her current secretarial job if she overdoes lifting or types for an extended period of time she develops a severe headache. She also testified that since the accident she has had a third child. After he was born she had to learn how to lift and carry him in a different way than the way she was accustomed to because it put a strain on her neck and right shoulder.
The jury heard Dr. Leach testify that he treated Mike Kumorek prior to the accident for complaints Kumorek had regarding the same areas of the neck and shoulder. The jury was also aware that Mike Kumorek had been in an auto accident 11 years prior to the one at issue and that he suffered neck pain and stiffness three or four times a year as a result of that accident. It was Dr. Leach’s opinion that the 1984 accident aggravated Kumorek’s condition. The jury heard Mike Kumorek testify that in his work as a farmhand it is necessary for him to look over his shoulder for extended periods of time and that he experiences a headache everyday.
The jury was entitled to weigh the credibility and general demeanor of the plaintiffs, including their subjective manifestations of pain. (Beckmeyer v. Alcala (1985), 135 Ill. App. 3d 166, 174, 481 N.E.2d 893, 898; Paulan v. Jett (1989), 190 Ill. App. 3d 497, 501, 545 N.E.2d 1377, 1380.) Although plaintiffs testified that they suffered pain as a result of the accident, the jury was entitled to weigh the testimony. (Beckmeyer, 135 Ill. App. 3d at 175, 481 N.E.2d at 899.) The jury may have found it determinative that the plaintiffs had prior histories of pain similar to the pain plaintiffs testified they experienced after the accident. The jury may have determined that the medical expenses incurred by the parties, which were awarded, were a direct result of the accident. In light of the conflicting testimony, however, it is my opinion that we cannot say that the jury would have acted improperly in finding that the pain and suffering complained of were the result of the other incidents plaintiffs had experienced.
The majority cites Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, in support of its argument that the jury's verdict was inconsistent. In Hinnen the court ordered a new trial where the verdicts awarded the accident victim compensation for the full amount of her expenses for pain medication and physical therapy, but awarded nothing for pain and suffering. Hinnen is distinguished from the instant case in that in Hinnen there was no evidence presented that the plaintiff had a prior history of the pain she described as experiencing as a result of her 1979 accident. Although the plaintiff in that case was involved in two other accidents which may have resulted in similar pain and suffering as was experienced as a result of the 1979 accident, those occurred three and four years after the 1979 accident.
In this case both plaintiffs had suffered prior injuries to the same areas of their bodies. It may be that the jury felt that plaintiffs were entitled to recover for the medical expenses incurred as a result of this incident, but that they also concluded that the plaintiffs had not sustained their burden of proof regarding their complaints of pain. In other words, in Hinnen the plaintiff was entitled to some award for pain and suffering for at least the period of time between the accident complained of and the first subsequent accident because there was no evidence of any other cause of the pain. Here, however, the jury could have concluded that the prior injuries were the cause of plaintiffs’ pain.
The evidence of the damages suffered by plaintiffs was conflicting. Resolution of this conflict was properly within the province of the jury, and I would not disturb the jury’s finding. I find no abuse of discretion in the trial court’s denial of a new trial and would affirm the judgment of the circuit court.