Summary
In Jenkins, the only evidence tending to show the amount of actual damages to a building into which defendant drove his truck was that of an experienced building contractor, familiar with the building, who examined the building a few days after the accident and concluded that $527.16 was the fair, reasonable, and ordinary cost of restoring the building to its condition before the accident.
Summary of this case from Georgouses v. DemosOpinion
Gen. No. 9,617.
Opinion filed February 28, 1949. Released for publication March 28, 1949.
1. APPEAL AND ERROR, § 821 — immaterial questions. Where defendant made no motion for new trial and did not contend before Appellate Court that trial court erred in allowing plaintiff's motion for directed verdict, Appellate Court was not required to review facts bearing on question of defendant's liability for actionable negligence.
See Callaghan's Illinois Digest, same topic and section number.
2. EVIDENCE, § 782fn_ — testimony not to be rejected. Where testimony of a witness is uncontradicted, either by positive testimony or circumstances, and is not inherently improbable, it cannot be rejected.
3. TRIAL, § 205fn_ — compromise verdict. In action for damages caused by alleged negligence of defendant in driving his truck against plaintiff's building, verdict assessing plaintiff's damages at $200 was result of compromise or capriciousness on jury's part and would not be allowed to stand, where the only evidence on question of amount of damages was a building contractor's testimony that in his opinion the reasonable cost of restoring building to its former condition was $527.16, and such testimony was not contradicted or inherently improbable.
4. APPEAL AND ERROR, § 888fn_ — estoppel by motion for directed verdict. That plaintiff, in moving for a directed verdict at conclusion of all the evidence in action for damages caused by alleged negligence of defendant, did not request that jury be directed to find as to any particular amount of damages did not "estop" plaintiff from claiming on appeal that verdict for an unsatisfactory amount was against manifest weight of evidence.
Appeal by plaintiff from the Circuit Court of Sangamon county; the Hon. DeWITT S. CROW, Judge, presiding. Heard in this court at the February term, 1949. Reversed and remanded. Opinion filed February 28, 1949. Released for publication March 28, 1949.
HERBERT L. CANTRILL, of Springfield, for appellant.
EARL S. HODGES, of Springfield, for appellee; MAURICE W. KEPNER, of Springfield, of counsel.
Plaintiff appellant, C.H. Jenkins, brought this action against the defendant appellee, James Maughan, to recover damages occasioned by the alleged negligence of the defendant in driving his truck against a building owned by the plaintiff. The court appointed a guardian ad litem to represent the defendant, he being a minor. The defendant's answer denied all material allegations of the complaint. Louis Gerber was first named as a codefendant but the suit was dismissed as to him.
At the conclusion of all of the evidence the court, on motion of the plaintiff, directed the jury to find the defendant guilty. The motion made no request as to the amount of the verdict and the court made no direction as to the amount. Thereupon the jury returned a verdict finding the defendant guilty and assessing plaintiff's damages at $200. Plaintiff then moved for a new trial on the ground that the uncontradicted evidence showed his damages were $527.16, and that the Verdict was against the manifest weight of the evidence. The court denied such motion and entered judgment for the plaintiff and against the defendant for $200. Plaintiff appeals, his sole contention being that the verdict is against the manifest weight of the evidence and that therefore the court erred in denying his motion for a new trial.
The defendant made no motion for a new trial and does not here contend that the court erred in allowing such motion for a directed verdict. Therefore we do not consider it necessary or useful to review or discuss the facts bearing on the question of the defendant's liability for actionable negligence.
In repairing the building the plaintiff did not have it restored to its original condition, but remodeled it slightly, — as he had a right to do.
The extent of the injury to the building was not contested. A building contractor of long experience and who did the remodeling testified that he was familiar with the building, that before the accident it was in good condition, that two or three days after the accident he examined the building and that in his opinion the fair, reasonable and ordinary cost of restoring the building to its condition before the accident was $527.16. This was the only evidence showing or tending to show the amount of actual damages.
Where the testimony of a witness is uncontradicted, either by positive testimony or circumstances, and is not inherently improbable, it cannot be rejected. ( Kelly v. Jones, 290 Ill. 375, 378.)
In the present case the testimony of such contractor, and the testimony as to the extent of the injury to the building, were not contradicted in any way, and were not in any way inherently improbable.
The damages allowed cannot be supported by any theory advanced by either party. It is not possible to know from the record how the jury arrived at that figure. Perhaps they felt sorry for the young defendant, or perhaps they thought that the plaintiff should not recover in spite of the direction of the court. Such a verdict as this is neither for the plaintiff nor the defendant. It is merely the result of a compromise or capriciousness on the jury's part; and, in such case, it will not be allowed to stand. ( Daniel v. Allen, 149 Ill. App. 351; Selamakos v. Victory Ice Ice Cream Co., 246 Ill. App. 178.)
Defendant contends that inasmuch as the plaintiff in moving for a directed verdict did not request that the jury be directed to find as to any particular amount, the plaintiff is now estopped from claiming that the verdict is against the manifest weight of the evidence. In our opinion there is no merit to this contention.
It is our opinion that the court erred in denying the motion for a new trial.
The judgment of the trial court is therefore reversed and the cause is remanded for a new trial.
Reversed and remanded.