delivered the opinion of the court.
In this рersonal injury case arising from a rear end automobile collision, a jury found in favor of the five plaintiffs but awarded them no damages. The questions to be determined are the propriety of such verdicts and the correctness of the court’s instruction: “. . . if you find there is no damage to the plaintiffs, then you will indicate on the verdict, ‘We, the jury, find for the plaintiff with no damages.’ ”
An automobile driven by Primus Jeffrey stopped for a red light at Michigan Avenue and 20th Street, Chicago, on March 14, 1955. A Chicago Transit Authority bus also stopped for the red light, about three feet behind the Jeffrey auto. The bus driver dropped a coin and as he reached to pick it up from the floor, his foot slipped from the brake and the bus, which had an automatic transmission, rolled into the Jeffrey auto. The bumpers hooked together. Jeffrey, the bus driver and a third man disengaged them and the vehicles went on their way.
Jeffrey’s wife, Lorene, was in the front seat with him and she held an infant, Rhima Lee, on her lap. The infant’s mother, Mary Lee, was in the rear seat with another daughter, Frances, two years old. Jeffrey testified that his shoulder and back were injured, that he was out of work for two weeks and that he was under a doсtor’s care for several weeks. Lorene Jeffrey testified that she was knocked against the dash hoard, that her back and legs were injured and that they still pained her at the time of the trial in 1961. She said the baby fell to the floor. A doctor, who treated all the plaintiffs, testified that the baby had multiрle contusions. Mary Lee testified that the impact threw her against the front seat and to the floor; that her back and shoulder were injured, her glasses broken, her eyebrow cut and that she suffered headache and dizziness. She said her daughter Frances received a bruised forehead аnd knee and a cut lip.
The trial was free of error and the verdicts were not influenced by passion or discernible prejudice. Complaint is made of the court’s instructions but, with the exception of the one informing the jury that it could find “no damages,” they were not objected to in the trial cоurt. Objections to instructions will not be considered when made for the first time on review. Bucyma v. Rizzo Bros., Movers, Inc., 31 Ill App2d 31,
The plaintiffs’ own evidence is the only exрlanation of the result. Their testimony was self-contradictory and was, in some material matters, impeached. The jury could have found them unworthy of belief and their injuries feigned. The testimony of their doctor, which corroborated them, was such that the jury could have given it little credence. Thе bills he submitted were in part for admittedly anticipated services which were not performed, and all of them, totaling $565 had been sent not to the plaintiffs but to their attorney, whom the plaintiffs saw in his office the day after the accident. Jurors are the sole judges of the credibility of witnesses and thе weight to be given to their testimony. The jury’s incredulity confirmed the opinion of the court who said during a conference outside the presence of the jury: “I don’t think anybody was hurt.”
This case must be distinguished from those where verdicts have been returned for plaintiffs with damages unassessed, or the damages assessed are inadequate, or the verdicts are contradictory and must be interpreted, or are compromises between the guilt of defendants and the damages sustained by plaintiffs. Kimmel v. Hefner, 36 Ill App2d 137,
Illinois has long held to the principle of law that every invasion of a legal right calls for some recovery because the law presumes damage. This principle has been applied to actions in tort and contract, to those for assault, for trespass, to compensate for a wrong or to vindicate a right whether the right breached is personal or relates to property. Plumleigh v. Dawson, 6 Ill 544 (1844); McConnel v. Kibbe, 33 Ill 85 (1864); Brent v. Kimball, 60 Ill 211 (1871); Schweer v. Schwabacher, 17 Ill App 78 (1885); Van-Velsor v. Seeberger, 35 Ill App 598 (1890); Wertheimer v. Glanz, 277 Ill App 389 (1934).
The principle has been extended to negligence cases. In Covenant Club of Chicago v.
In Edwards v. Ely, 317 Ill App 599,
The words “which in any event must be at least nominal damages” epitomize the present rule of law in Illinois. This rule has been developed in the Appellate Court аnd we believe it should be re-examined. The re-examination takes on increased importance in view of the current trend in negligence cases toward the separation of the issues of liability and damages— where the former must be determined before the latter need be tried.
In rеaching its conclusion, the court in Edwards v. Ely relied in part upon Covenant Club of Chicago v. Thompson, supra, which was an action on the case. This spotlights the course of the law in Illinois. At common law the action of trespass carried with it the right of redress. "When the action of trespass оn the case was introduced the compensation-for-every injury concept gave way to proof of actual damage before a recovery was permitted. Negligence actions evolved from actions on the case, therefore, proof that damage was really sustained should be necessary in such cases. Prosser, Law of Torts (1955), 2nd Ed, p 165. However, in some jurisdictions the rule which prevailed in trespass carried over into actions on the case. Illinois is one of these jurisdictions. The early Illinois cases cited previously in this opinion for thе principle of law that every injury imports damage were, for the most part, actions on the case. The next development was, as in Edwards v. Ely, the application of the rule to negligence actions.
In other jurisdictions where proof of actual damage is held to be essential in actions on the case, proof of actual damage is likewise held essential in actions based on negligence. These jurisdictions reflect the more normal and logical evolution of the principle that “no one has a cause of action against another for the latter’s wrongful act unless he is injured by it.” In Trudeau v. Manchester Coal & Ice Co., 89 NH 83, 192 A 491 (1937), the New Hampshire Supreme Court succinctly expressed the principle in a case involving an auto struck in the rear by a truck while it was waiting for a traffic light to change: “Both actions were brought in case. Thеy were brought not to vindicate a right but to recover compensation for negligently inflicted personal injuries and property damage and, consequently, resulting actual damage is an essential element of each. Chesley v. Dunklee, 77 NH 263, 265, 90 A 965. Nominal damages have no place in аctions of this sort. Failure on the part of either plaintiff to prove actual damage entitles the defendant to a verdict in the case in which such failure of proof occurs.” A case frequently cited is that of Sullivan v. Old Colony Street Ry. Co., 200 Mass 303,
There are comparatively recent cases following or adopting the same principle of law. In Philips v. Delta Motor Lines, 235 Miss 1, 108 So2d 409 (1959), an auto, stopped at a traffic light, was struck in the rear by a truck. The court held: “Even if the jury found that the truck driver was negligent, a guest in the automobile struck by the truck would not be entitled to recover unless the jury believed from the evidence that she had been injured as the result of the truck driver’s negligence.” In reaching this decision the majority of the court, according to a minority opinion, overturned the rule which had been adhered to in Mississippi for 75 years. See also Fields v. Napa Milling Co., 164 Cal App2d 442,
Thus, both the historical transition of the law and its re-evaluation in those states which had not followed the transition, favor the requirement of aсtual damage in negligence cases. This view is also supported by writers on the subject, deck, in Damages to Persons and Property (1957) presents the thought in two forms: “It is necessary to show harm in a claim for negligent interference with a person or with personal property. . . (section 67), and “In negligence matters, the presence of damage in fact very generally is viewed as an inherent part of the substantive right. If no actual damage can be shown, no legal wrong is shown, and no award (not even of nominal damages) is proper. . . .” (section 75). Dean Prosser states: “Nominal dаmages to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred.” He then lists the elements necessary to a cause of action based on negligence and includes, “d. Actual loss or damage resulting to the interest of another.” Prosser, Law of Torts (1955), 2d Ed, p 165.
The wisdom of the last requirement is exemplified by the present case. If the jury did not disbelieve the plaintiffs and if their evidence was not discredited we presume verdicts would have been returned commensurate with their testified pains and losses. Certainly the verdicts would not have been for “no damages.” If because of these verdicts the trial judge, despite his own and the jury’s opinion that the plaintiffs were not hurt, had adhered to the rule that every breach of a defendant’s duty must bring a monetary recovery of some sort irrespective of personal harm or pecuniary loss, he would have had to order a new trial, and maybe another and another. Outside of preserving the legal fiction of nominal damages what real wrong would this remedy, what justice would this accomplish in this negligence case? To paraphrаse the opinion of Justice Cooley in Post v. Campau,
We believe the rule that there must be at least nominal damages in negligence cases is unrealistic. The damage awarded should be for the harm suffered not for the unintentional tort committed. We hold if a defendant’s liability is еstablished, a plaintiff must prove actual damage before he can recover.
The instruction that the jury could find there was no damage was not directional. It was a proper instruction considering the facts of the case and the other protective instructions on damages.
The judgment of the Municipal Court is affirmed.
Affirmed.