delivered the opinion of the court:
Plaintiffs David S. Kinsey and Stephen D. King filed separate suits against defendant Warren J. Kolber alleging that defendant negligently operated a station wagon in which they were passengers causing Kinsey to become paraplegic and King to sustain brain damage. The suits were consolidated for trial, and after a jury trial, judgment was entered for Kinsey in the amount of $1,569,000, and for King in the amount of $465,000. Defendant raises the following issues on appeal: (1) whether the trial court erred in refusing to direct a verdict for the defendant based upon the Iowa guest statute; (2) whether the trial court erred in allowing the attorneys for the plaintiffs to question the jurors during voir dire concerning a specific verdict amount and their experience in the insurance business; (3) whether the verdicts were excessive and against the manifest weight of the evidence; and (4) whether the trial court erred in admitting certain items of evidence which either individually or cumulatively denied defendant a fair trial.
For the reasons set forth herein the judgment of the circuit court is affirmed.
Facts
At trial Officer Gary Hoskins, an Iowa State trooper, testified that on May 14,1976, he received a call to investigate an accident that happened on the bridge crossing the Cedar River in Iowa on Interstate 80. He described the bridge where the accident occurred as consisting of two westbound lanes, each 12 feet wide. On the outer edge of each lane there is a shoulder three feet in width, and a nine-inch curb from the shoulder area upon which guard rails sit on either side of the bridge. Officer
Russell Kennell testified that on May 14, 1976, as he was driving westbound in the right lane on Interstate 80 several hundred yards from the Cedar River bridge, he observed a semi-truck in the right lane and a station wagon in the left lane on the bridge. The car was behind the truck, but it appeared to be pulling up to pass the semi-truck on the left. Both the truck and the station wagon appeared to be going faster than he was, and he estimated his speed at about 60 to 62 miles per hour. He saw the truck move from the right lane to the left lane and come very close to hitting the car. The car swerved back to the right and hit the side of the bridge. As soon as the car hit the bridge there was a cloud of dust and he saw nothing else. He stopped his vehicle at the beginning of the railing that had been sheared off. By this time the dust had cleared and he observed the Campbell car facing south across the two lanes of traffic. He also observed damage to the right side of the Campbell car. The truck had left the bridge and was continuing on down the interstate. When he looked under the bridge for the station wagon he saw it sitting on its wheels on the riverbank with the top squashed down. He moved the Campbell car out of the way and started traffic going.
Dorothy Campbell testified that she was involved in an accident on May 14, 1976, on Interstate 80 as she was proceeding westbound in the right-hand lane on a bridge. Traffic was pretty heavy. She was going 50
David Kinsey
Claire Kinsey testified that she is David Kinsey’s mother, and that David was born October 29, 1959. She stated that prior to May 14, 1976, David’s health was excellent. On May 14,1976, David was 16 years old, he was six feet two inches tall, weighed over 200 pounds, and was in his junior year of high school at Glenbrook North High School in Northbrook, Illinois. About 5:30 p.m. she received a phone call from Mrs. King that the boys had been in an accident. She flew to Iowa City, Iowa, where David was in the intensive care unit at the University of Iowa Hospital. David was conscious, but he was unable to communicate because he was on a life-support system. He had a tube down his throat with a respirator breathing for him. He had just come out of surgery and had a 14-inch incision down his front. Doctors informed her that David’s spleen had been removed, and that he had a torn diaphragm. She was also told that his back was broken, and that he was paralyzed. Back surgery was delayed about three weeks because David had wounds on his back which had to heal first. He was in a Stryker bed until after the back surgery. He was then put into a regular bed, but was in a complete body shell. David was a patient at the University of Iowa Hospital until July 2, 1976. The family bought a station wagon that could hold a full-sized mattress to transport David home. The day after he arrived home his leg swelled up. This was diagnosed as a blood clot. He was admitted to the Rehabilitation Institute and transferred to Wesley Hospital for treatment which lasted one week, and then transferred back to the Rehabilitation Institute. A week later he was again transferred to Wesley Hospital for treatment of urinary problems. At this time David had an in-dwelling catheter. When the problems were resolved he was sent back to the Rehabilitation Institute where he remained until October 8, 1976. David’s weight had
John Kinsey, father of David Kinsey, testified that he had to ramp the front of the house to accommodate David in his wheelchair. He had to make a box spring replacement for David’s old box springs so he could transfer from bed to wheelchair as well as to stabilize his back. He also had to raise the table legs so David could sit at the table.
David Kinsey testified that he is a junior at the University of Arizona studying accounting. He testified that he was lying down in the second seat of the station wagon on May 14, 1976, and that Warren Kolber was driving. The first knowledge he had of anything unusual happening was when he heard Stephen King yell, “Look out!” He sat up and caught a glimpse of a truck. The next thing he remembered, the car had settled on the ground and he was pinned. In high school he was a varsity soccer player and an all-star baseball player. He also played hockey and intramural basketball and softball. Now he lifts weights and swims.
The evidence deposition of Dr. Rruce Sprague, an orthopedist, was read into the record. Dr. Sprague first saw David Kinsey on May 14,1976, in the intensive care unit at the University of Iowa Hospital. When he saw David he had a fractured dislocation of T12 on L1, the. junction between
Dr. Vinod Saghal testified that he is a neurological and rehabilitation specialist. David Kinsey became his patient in July 1976, when he was transferred to the Rehabilitation Institute from the University of Iowa Hospital. He was examined and his paraplegia was confirmed. He was paraplegic from the groin down with sensory loss in that area. He was at the Institute for 3/2 months. While there David developed a urinary tract infection which was treated; he developed thrombophlebitis which was treated; and, he developed a pulmonary, embolism which was also treated. David could not sit up straight in a wheelchair. He had to start up slowly, first 30 degrees, then 45 degrees, up to 90 degrees. He started training in a bowel program and intermittent catheterization. The thrust of his rehabilitation program was upper extremity strengthening, trunk strengthening, sitting, balancing, transfer from bed to wheelchair, wheelchair to commode, wheelchair to car, car to wheelchair, dressing,
Dr. Thomas Stanisic, a urologist, testified that he first saw David Kinsey on February 8,1978. He observed that David was in a wheelchair, and was paralyzed from the waist down. He reviewed X rays sent to him by Dr. Ignatov, and he scheduled David for surgery to remove a bladder stone. When he first saw David he was passing a rubber tube into his penis about four to six times a day to release the urine. In addition, because the muscle that controlled the urine had been damaged, he was wearing a device over the end of his penis so that accidents didn’t occur in public and embarrass him. The sphincter that controlled his bowel was also not working, and at that time David tried to keep his stools very hard and would stimulate his bowels with a gloved finger. He also used suppositories. The bladder stone was removed March 13, 1978. David was hospitalized until March 18 because he suffered a urinary tract infection at the time of the surgery because of the stone. Dr. Stanisic stated that urinary tract infections are common in paraplegics. He next saw David on July 12, 1979, but prior to that time David had seen Dr. Ignatov and had the sphincter muscle cut. David was complaining of pain and swelling in his left leg which was diagnosed as thrombophlebitis, a common complaint in paraplegics. David’s history revealed that he had been treated twice before for the same condition. David was hospitalized for treatment. Dr. Stanisic saw David again in August 1979, when he was admitted to have the Harrington rods which had broken, removed from his back. By this time the bone graft performed at the Iowa hospital had taken and his spine was stable. The spinal cord, however, was damaged. After the Harrington rods were removed David developed a urinary tract infection due to the surgery and the medicine he needed for the pain. Since he has no sensation Dr. Stanisic stated that David should see a doctor every three months and have his urine examined for evidence of infection. He should catheterize himself twice a month to make sure he is emptying his bladder, and he should have his kidneys X-rayed twice a year. He saw David again September 18,1979, when David had another infection in his bladder, which was treated with oral antibiotics. At that time David questioned him about his sexual functioning, as he had not had an erection since the accident. David was hospitalized for tests, and it was determined that an organic lesion was causing his impotence. He testified that in about 30% of the cases when one cuts the muscle that controls the urine, a
Kinsey’s attorney introduced into evidence the life table published by the United States Department of Health, Education and Welfare, showing Kinsey’s life expectancy to be 51 years and six months. He also read into the record a stipulation with defendant that the amount of Kinsey’s medical bills and expenses to date amount to $69,036.36.
Stephen King
Joyce King testified that she is the mother of Stephen King, and that Stephen was born June 30, 1959. She stated that up until May 14, 1976, Stephen was a normal healthy boy. On that date he was a junior at Glenbrook North High School in Northbrook, Illinois, where he was a good student. About 6 p.m., on May 14,1976, she received a call from Mr. Kolber that the boys had had an accident in Iowa. The Kolbers drove her to the hospital, where she saw Stephen in the intensive care unit. He was comatose and unconscious. He was hooked up to many machines, a respirator, an EKG, a nose tube, intravenous in his arms, and a catheter. He was lying perfectly flat and perfectly still. They had performed surgery to insert a screw in the skull of the brain. The screw was approximately four inches long, and it was sticking up through his head. It was to measure the intra-cranial pressure of the brain and to put medication into the brain. He was a patient at the hospital until June 10, 1976. He was unconscious for one week, and in a semi-coma for two weeks. When Stephen became conscious he did not know who anyone was or where he was. He would say words, but they didn’t mean anything, and he would thrash around in bed. On June 10 he was transferred to Highland Park Hospital in Highland Park, Illinois, where he stayed for 10 days. Stephen was then transferred to Evanston Hospital where he stayed for two weeks in the rehabilitation unit. When he went to the rehabilitation unit he still did not know who or where he was or who anyone else was. He couldn’t walk, talk, or go to the bathroom. He had physical therapy, occupational therapy, and speech therapy three times a day. They were told that he had severe brain injury. Stephen had a back fracture and many cuts and bruises. At the University of Iowa Hospital he was fitted for a back brace which he wore until the middle of July whenever he was not perfectly flat in bed. When Stephen returned home on July 3, he still did not know who he was, who his family was, or recognize his friends or the house. He was using a three-pronged cane. He also had bedwetting problems until the middle of July. He didn’t know the words for anything and he had to relearn everything. Mrs. King took
Stephen D. King testified that he was born June 30, 1959, that until May 14, 1976, his general health was pretty good, and that he played tennis every day. At school he played golf and was on the wrestling team; he also played basketball, football, softball, and “most everything.” He stated that he is five feet six and one half inches tall and weighs 140 pounds. He does not recall any of the events of May 14, 1976. He has a few slight memories of being in Evanston Hospital. He recalls getting speech therapy at Evanston Hospital and working with the flash cards with his mother. He also recalls doing exercises at home. He testified that he wears a leg brace to stop him from tripping. He has trouble controlling his right leg and it locks up sometimes, and is hard to bend at the knee. He has a limp.
The evidence deposition of Dr. Carl J. Graf, neurosurgeon, was réad into the record. He testified that Stephen King was a patient at the University of Iowa Hospital from May 14, 1976, until June 10, 1976, and that his main problem was neurological due to' a head injury sustained May 14, involving the left cerebral hemisphere and the brain stem. An intracranial pressure screw was inserted into Stephen’s brain to measure the pressure in the brain. He was thrashing around because he was hurt in different areas. Monitoring equipment was connected to the intracranial scréw. He was given drugs to reduce the swelling. He had a urinary
Dr. Ivan Ciric, a neurosurgeon, testified that he first saw Stephen King on June 14, 1976. He found Stephen to be disoriented and confused as to where he was and why. He had difficulty recognizing people and placing them in proper surroundings and circumstances. He had difficulty understanding spoken language, and could not name objects shown to him. He had marked weakness of his right arm, increased reflexes on his right side, and weakness in his right leg with abnormal reflexes. His impression was that Stephen had sustained a left cerebral lesion, traumatic, likely a contusion, meaning a bruise of the left side of his brain resulting in a speech defect and in a weakness of the right side of his body. He recommended that Stephen be transferred to the rehabilitation unit at Evanston Hospital. An EEG performed on Stephen revealed resistance with involvement of the left side of the brain surface which controls the right side of the body, and injury to the brain stem. When seen shortly after discharge, Stephen showed remarkable recovery but remained somewhat slow, flat, and dull. The neurological examination revealed mild impairment of convergence with both eyes, a foot drop on the right side, and weaknesses on the right side of the body known as paresis, caused by injury to the brain. There had been a fracture of L 2 of the spine. When he saw Stephen in July 1980, he observed that some weakness in the right arm and to a greater degree in the right leg persists. Stephen continues to have slight mental slowness and weakness on the right side of his body. He has a memory deficit. He believed that Stephen had plateaued off.
Dr. Joseph Feldman, specialist in the rehabilitation of physical disabilities, testified that he first saw Stephen King on June 20, 1976, at Highland Park Hospital. He did a full consultation and a physical examination. Stephen had trouble with his language remembering the right word to use. He had impaired recent and past memory. He had some confusion knowing the right side from the left side, and he had some evidence of perseveration. There was some incoordination in the upper extremities, some spasticity in the muscles in the right leg and ankle, and weakness in the right hip and leg. There was some evidence of abnormal reflexes on both sides in the upper extremities, and sensation was decreased on the right side. He diagnosed Stephen as having cerebral trauma with a contusion of the left frontal lobe of the brain and decreased memory and language disturbance. Stephen was admitted to the Evanston Hospital Rehabilitation Center June 20, 1976, and discharged July 2, 1976. When Stephen entered the hospital he had trouble controlling his stool and urinary functions. He had trouble remembering. While there he received physical therapy to strengthen the muscles and improve his
Jack Arbit, Ph.D., clinical psychologist, testified that he saw Stephen King on June 10, 1980, for a diagnostic evaluation of his functioning. He administered several psychological tests. He testified that the pattern of results indicated the presence of chronic organic brain damage. He stated that this condition would reduce Stephen’s level of vocational functioning in terms of memory functioning and in terms of capacity to organize, motivate, and direct his efforts in a productive way.
Dr. Carlo Scuderi, an orthopedic surgeon, testified that he examined Stephen King July 21,1980, because he didn’t have control of his right leg as a result of brain damage. Stephen was wearing a drop-foot brace on his right leg. He had a definite limp of the right leg. He testified that the drop foot will be permanent. He recommended that Stephen continue to use the brace.
King’s attorney introduced into evidence the life table published by the United States Department of Health, Education and Welfare, showing King’s life expectancy to be 50 years and one month. He also read into the record a stipulation with defendant that the reasonable value of the medical services rendered to King was $15,627.80.
Defendant Warren J. Kolber
Defendant testified that he was born June 23,1959, and that on May 14, 1976, he was just completing his junior year of high school at Glenbrook North High School where he and the plaintiffs were classmates.
Opinion
I
Initially defendant contends that the trial court erred in refusing to direct a verdict for defendant based upon the Iowa guest statute. Defendant claims that under Ingersoll v. Klein (1970),
Plaintiffs contend that the trial court properly ruled that Illinois law governed the trial of this cause because Illinois, and not Iowa, had the most significant relationship with the occurrence and the parties. (Ingersoll v. Klein.) Plaintiffs rely on the facts that both plaintiffs and defendant are residents of Illinois, an Illinois vehicle was involved in the incident, and the trip began and was ultimately to end in Illinois. Moreover, the Iowa guest statute was declared unconstitutional by the Iowa Supreme Court prior to the trial of this cause in Bierkamp v. Rogers (Iowa 1980),
We observe that none of the pleadings filed by defendant prior to the conclusion of the evidence contended that the matter should be tried under Iowa law, and we agree with plaintiffs that this issue has not been timely raised, and has therefore been waived.
II
Defendant’s second contention is that the trial court erred in allowing the attorneys for the plaintiffs to question the jurors during voir dire concerning a specific verdict amount and their experience in the insurance business. During voir dire Kinsey’s attorney asked the panels of prospective jurors the following four questions:
“(1) And you are going to hear figures of money damages that we feel we will prove to you under the law and the evidence in access [sic] of $2,000,000. Would you have trouble signing your name to such an amount of money in a verdict if it were proven under the law and the evidence to be a proper amount?
(2) I have asked the other panel whether or not they would have any trouble at all if the evidence warranted it under the law that Judge Norman gives you, in finding a verdict in the sum in excess of two million dollars. Does that trouble any of your jurors?
(3) Do you have any trouble at all with the sum of money, if I say to you we may ask you, based upon law and evidence and proof for a sum of money in excess of $2,000,000, does that sum immediately strike you as being something to do with?
(4) Anything about the amount of money that I have mentioned to the other panels in any way that would disturb you? I said to the jurors that if after all the proof was in you heard a figure in excess of $2,000,000 as a damage request, would that in any way make you feel you couldn’t partake as a juror in the kind of a verdict—if it were justifiable under the law?”
Defendant urges that these questions went beyond the legitimate scope of voir dire to effect an indoctrination of the jury, and evidenced an attempt to elicit a pledge, which constituted reversible error. (Gasiorowski v. Homer (1977),
Defendant also claims that the questions asked during voir dire about the continued friendship of the parties suggested that this was a friendly lawsuit and that insurance would cover any judgment entered against defendant. He further urges that the questioning of specific jurors concerning a relationship with insurance was excessive and unfair and resulted in the disclosure of liability coverage at trial, which also constituted prejudicial error. Marchlik v. Coronet Insurance Co. (1968),
Plaintiffs urge that the trial court properly applied the rule of Scully v. Otis Elevator Co. and allowed the jurors to be queried as to their ability to return a large verdict if warranted by the evidence. Prior to the voir dire Kinsey’s attorney notified the court that he intended to qualify the jury as to the verdict amount. Defendant objected to a specific amount. The court then proceeded to establish a procedure for such questioning, instructing counsel to read the Scully opinion and follow the mandate of that court in formulating the questions to the jurors. The court further instructed counsel to question a panel as a whole as opposed to each prospective juror. Plaintiffs claim to have followed the procedure set by the court pursuant to Scully, Jines, and Murphy.
Plaintiffs also claim that no objections were made to the procedure established by the court, to the questions subsequently asked, or to the remarks made during closing argument, and that these issues have therefore been waived on appeal. (Kalalinick v. Knoll (1981),
Defendant has not pointed out any place in the record where he made an objection to the questions and remarks at issue herein, and we therefore agree with plaintiffs that these issues have been waived on appeal. (Kalalinick v. Knoll; King v. Exchange National Bank.) However, we elect to consider the issue concerning the questions asked during voir dire concerning a specific verdict amount. We have reviewed the record,
Ill
Defendant’s third contention is that the verdicts were against the manifest weight of the evidence and excessive. Defendant urges that he was confronted with a driving emergency when a truck changed lanes in front of him, and that he conducted himself reasonably under the circumstances. He claims that his move to the right lane was the only possible reaction to a truck which moved suddenly into his lane and flashed its brake lights, and that the unidentified truck was the proximate cause of the accident. (Laflin v. Estate of Mills (1977),
Plaintiffs argue that the verdicts were amply supported by the evidence and not excessive. They claim that the law in Illinois is that the evaluation and award of damages is preeminently within the province of the jury. (Clark v. City of Chicago (1980),
We do not agree with defendant that the verdicts were against the manifest weight of the evidence. There was evidence presented that defendant was an inexperienced driver who had been driving about six months, and that he attempted to pass a truck on a bridge at a speed in excess of 62 miles per hour. Dorothy Campbell testified that she glanced in her rear-view mirror and saw defendant’s car “coming pretty fast” as she was approaching the bridge. After she got on the bridge she saw the car “whip right in behind her,” after which she was struck on the right-hand side, and carried forward toward the railing. Although she took her foot off the accelerator and was just steering, her car did not slow down. Russell Kennell testified that as he was approaching the bridge at a speed of between 60 and 62 miles per hour, he observed a truck and a station wagon on the bridge ahead of him and that both appeared to be going faster than he was. When the truck signalled to change lanes defendant attempted to pass the truck on the right side. When defendant swerved into the right lane, he hit the bridge and collided with the car driven by Dorothy Campbell, dragging it for some distance. According to the testimony of Officer Hoskins he also scraped the curb for 23 feet, scraped the bridge railing for 179 feet, took out 112 feet of bridge railing, and travelled on top of the bridge railing for 39 feet before landing in the embankment 27 feet below the bridge. At trial defendant did not remember if the truck signalled a left turn, nor did he remember braking; however, defendant wrote out and signed a statement for Officer Hoskins on the day of the accident, in which he stated that when he was approaching the bridge in the left-hand lane, there was a truck that put on its left turning signal and started pulling to the left-hand lane. The brake lights came on the truck and he (defendant) decelerated. He (defendant) swerved back to where the opening was, and all he remembered after that was the car rolling off. He also stated that his speed was 55 to 60 miles
There was testimony that David Kinsey was 16 years old at the time of the. accident. He was a normal, healthy high school junior who participated in many sports. After the accident he was permanently paralyzed from the waist down. There was a fracture dislocation of T 12 on L 1. The first lumbar vertebra had been crushed. His thoracic spine and his lumbar spine had shifted, relative to each other, resulting in malalignment. He had no feeling from the waist doWn. His ruptured spleen had been removed, and his ruptured diaphragm had been repaired. Harrington rods were inserted in his back to stabilize the fracture and had to be surgically removed when they broke. Following his initial hospitalization David suffered from blood clots in his legs and. developed a stone in his bladder. Surgery was performed on his sphincter muscle to allow his bladder, to empty, and he now wears a bag attachment continually. He has suffered many urinary tract infections which are common for paraplegics. He is impotent. He has a normal life expectancy, which at the time of trial was 51 years. David’s medical bills and expenses at the time of trial totalled $69,036.36. He must see a doctor every three months to have his urine examined, and he needs to have his kidneys X-rayed twice a year. He may need further urinary tract surgery. He will probably spend 30 to 35 days in the hospital each year for the rest of his life. He is not likely to be able to put in a normal work day because of the physical problems associated with his type of paraplegia. There was also testimony that at the time of the accident Stephen King was also 16 years old. He, too, was a normal, healthy high school junior who participated in many sports. After the accident he didn’t know who or where he was or who anyone else was. He couldn’t walk,, talk, or go to the bathroom. He had a back fracture, cuts and bruises, and had sustained severe brain injury. He had to relearn everything, and he had lost control of his right leg. He continues to have mild incoordination in the right upper extremity, he has a decrease in grasp strength compared to the left side and will probably have.permanent mild incoordination in the right hand. The right leg is shorter than the left. He continues to have some mild persistent weakness .in the ability to bring his toes up into a backward position. He has a mild spastic gait which is permanent. He will probably have to visit a doctor once a year. He has a learning disability and will have trouble learning , new material and remembering it.
We observe that defendant at no time objected to the method used
IV
Defendant’s final contention is that the trial court erred in admitting certain items of evidence which , either individually or cumulatively denied him a fair trial. He urges that he was prejudiced by the admission of hearsay medical testimony from the mothers of the plaintiffs and from Drs. Feldman and Arbit; that it was error to admit evidence that he had not completed his driver’s training course at the time of the incident; that plaintiffs’ attorneys made improper and prejudicial remarks during closing arguments; and that it was error to allow the plaintiffs to argue impeachment and for the court to so instruct the jury when defendant had not been impeached. Claire Kinsey testified to what David’s doctors had told David and her about the nature, extent, severity, and effect of David’s injuries. The testimony of Joyce King was substantially the same in nature concerning Stephen’s injuries. Defendant claims that the sole purpose of this testimony was to prejudice the jurors against him and arouse their sympathy towards plaintiffs, and that the admission of this testimony constituted reversible error. (Kiest v. Schrawder (1978),
Over defendant’s objection Dr. Feldman read aloud the findings of a Dr. Levine to whom he had referred Stephen King for psychological testing. He testified as to what tests were given by Dr. Levine and as to the tests’ results. He testified further that these results as well as the results of psychological tests administered by Dr. Rozinsky were utilized in the treatment of Stephen in terms of helping him with his future education.
Defendant claims that it was reversible error to allow Dr. Arbit, a clinical psychologist, to testify over his objections that the results of psychological tests administered by him to Stephen King indicated the presence of chronic organic brain syndrome. (In re Wellington (1975),
Defendant contends that it was error to allow evidence that he had not completed his driver training course at the time of the accident because the effect of this evidence was to inform the jury that he did not have a driver’s license. He urges that this evidence was immaterial to the issue of negligence, (Perry v. Richerson (1954),
Finally defendant contends that counsel for both plaintiffs made improper and prejudicial remarks in their closing arguments. Defendant did not object to the remarks of plaintiffs’ counsel during closing argument, and has therefore waived this issue on appeal. (Funk v. Venture Stores, Inc. (1981),
For the reasons set forth herein the judgment of the circuit court is affirmed.
Affirmed.
McGLOON and GOLDBERG, JJ., concur.