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In Re Dance

JANUARY 20, 1958.

IN MATTER OF ESTATES OF DONNA SUE DANCE, DECEASED, RICHARD DANCE, DECEASED, AND ROBERT DANCE, DECEASED. DONALD DANCE, ADMINISTRATOR OF ESTATES OF DONNA SUE DANCE, DECEASED, ET AL., DONALD DANCE AND SUSAN DANCE, PLAINTIFFS-APPELLEES,

v.

MARY JANE MARTELLI AND VINCENT ALBERT MARTELLI, MINORS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Macon county; the Hon. RODNEY A. SCOTT, Judge, presiding. Reversed and remanded with directions.

PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

On April 2, 1955, Donna Sue Dance, aged 3, Richard Dance, aged 5 and Robert Dance, aged 8, children of Donald and Susan Dance, met death by drowning when the automobile driven by their mother in which they were riding, collided with another automobile and went into the waters of Lake Decatur in Macon county.

The deceased minors each left surviving as their sole and only next of kin, their father, Donald Dance, their mother, Susan Dance and their half brother and half sister, Vincent Albert Martelli and Mary Jane Martelli.

Donald Dance, having been appointed administrator of the estates of each of the deceased minors, brought suit in the Circuit Court of Macon county to recover for their wrongful deaths. On November 7, 1955, the administrator petitioned the County court of Macon county for authority to compromise and settle the causes of action for the death of each of the minor decedents for the following sums: Donna Sue Dance, $3,000.00; Richard Dance, $4,000.00 and Robert Dance, $4,500.00. The administrator's petitions also included a prayer that the court determine the degree of dependency of the heirs and next of kin of the decedents. A guardian ad litem was appointed to represent the interests of Mary Jane Martelli and Vincent Albert Martelli, who were minors, and an answer in their behalf was filed. The County court allowed these petitions and entered orders approving the settlements and directed that the proceeds thereof be distributed one-fourth each to Donald Dance, Susan Dance, Mary Jane Martelli and Vincent Albert Martelli. From these orders plaintiffs appealed to the Circuit Court of Macon county. In that court a guardian ad litem for the minor defendants was appointed and the petitions ordered consolidated for hearing. Upon trial de novo, the Circuit Court entered a consolidated order finding that plaintiffs Donald Dance and Susan Dance were the sole dependents of the three minor decedents and directing that the proceeds of the proposed settlement be distributed one-half to Donald Dance and one-half to Susan Dance. Defendants prosecute this appeal from the foregoing order of the Circuit Court.

The record discloses that in 1943, plaintiff Susan Dance was divorced from Albert Martelli, father of the minor defendants; that since that time defendants have lived with their father in the State of New Jersey; that decedents had no property or income and were wholly dependent upon plaintiffs; and that neither plaintiffs nor defendants were dependent upon decedents. On the trial over the objection of the guardian ad litem, plaintiffs were permitted to introduce certain evidence as to the absence of social contacts between the decedents and the Martelli children and also as to the fact that the latter contributed nothing to the support of the decedents. In view of the conclusion reached, we regard any detailing of this evidence unnecessary.

Upon the date of the death of the minor decedents, the provisions of the Wrongful Death Statute governing distribution of the proceeds of actions thereunder were as follows:

"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, not exceeding $15,000 where such death occurred prior to the effective date of this amendatory Act of 1951, and not exceeding $20,000 where such death occurred on or after the effective date of this amendatory Act of 1951." (Sec. 2, Chap. 70, Ill. Rev. Stats. 1953.)

Effective July 14, 1955, the foregoing provisions of the Wrongful Death Statute were amended to read as follows:

"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, not exceeding $20,000 where such death occurred prior to the effective date of this amendatory act of 1955, and not exceeding $25,000 where such death occurred on or after the effective date of this amendatory act of 1955.

"The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of agreed settlement, by the county or probate court, as the case may be, to each of the widow and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person." (Sec. 2, Chap. 70, Ill. Rev. Stats. 1955.)

The basis of defendants' contention for reversal is that distribution of the proceeds of the compromise settlement of the Wrongful Death claims is governed by the Wrongful Death Statute as it existed at the time of decedents' death and that the trial court erred in ordering such proceeds distributed equally between Donald Dance and Susan Dance. Alternatively, defendants' theory is that if the Death Statute as amended is to govern the distribution of the proceeds of the proposed settlement, the minor defendants should equally share with the plaintiffs since the dependency upon the deceased minors of their next of kin was not established and therefore the court below could not determine the percentage of dependency as provided by the amended Statute.

Substantially, plaintiffs argue that the interests of defendants in the proceeds of the settlement of the death action as provided by the Act at the time of the death of decedents are not vested rights; that it was within the power of the legislature to withdraw or abolish the same and that such is the effect of the 1955 amendment upon the rights which the defendants claim in the settlement proceeds.

The general question as to when legislation may be construed to apply retroactively has received the attention of our courts on many occasions. We shall here refrain from any attempt to review or discuss the many decisions dealing with this subject. We deem it sufficient to say that an exhaustive analysis thereof is found in Orlicki v. McCarthy, 4 Ill.2d 342; Theodosis v. Keeshin Motor Exp. Co., 341 Ill. App. 8; People v. Lindheimer, 371 Ill. 367 and Wall v. Chesapeake & Ohio Ry. Co., 290 Ill. 227.

A study of these cases seems to lead to a definite conclusion that there is no unanimity of opinion among jurists as to when statutory amendments may be applied retroactively. However, these and other decisions do reflect agreement that under the Statutes Act (Sec. 4, Chap. 131, Ill. Rev. Stats. 1955) the only rights thereby protected against retroactive legislation are those referred to as "vested rights," but a precise all-inclusive definition of the latter term is not furnished. The courts ...


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