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Barrow v. Lence

JUNE 2, 1958.

ELIZABETH BARROW, ADMINISTRATOR OF ESTATE OF EDITH GRAHAM, DECEASED, PLAINTIFF,

v.

JOHN LENCE AND GLADYS BAKER, DEFENDANTS. ELIZABETH BARROW, ADMINISTRATOR OF ESTATE OF ROBERT GRAHAM, DECEASED, PLAINTIFF,

v.

JOHN LENCE AND GLADYS BAKER, DEFENDANTS.



Appeal from the Circuit Court of Union county; the Hon. C. ROSS REYNOLDS, Judge, presiding. Remittiturs required, otherwise reversed and remanded for new trial.

PER CURIAM.

This is an appeal from companion cases arising under the same set of facts, to recover damages for the wrongful deaths of Robert Graham and Edith Graham, contended to have been caused by defendants. Liability was admitted in both cases and only the question of damages was contested. The cases were consolidated and tried together and will be treated together in this opinion. The jury returned verdicts of $12,500 in each of the cases. The verdicts were sustained by the Trial Court.

On appeal in this Court it is contended by defendants that since the decedent, Robert Graham, was 64 years of age and had been unemployed for five years before his death, and was receiving a pension of only $66 per month as his sole income; and since the decedent, Edith Graham, was 61 years of age and was unemployed for about a year and four months before her death, and had an income consisting of a pension of $118 per month; and since the only next of kin of the decedents was an adult daughter, Elizabeth Barrow, plaintiff, who was a married woman, living on a farm with her husband, and who was separately employed and not a direct dependent of her father and mother — that the verdicts cannot be sustained. The only direct evidence of a contribution by the decedents to the daughter was evidence of a gift of $100 to apply on a refrigerator purchase, and gifts of food and small amounts of money from time to time. The evidence also showed that the decedents owned and lived in their own home separate and apart from the daughter and rendered no services to her.

It being demonstrated by the evidence that the daughter was not dependent upon the decedents for support and was receiving no services from them, the remaining element of pecuniary loss to be considered was what amount in all probability the decedents would have added to their estates but for their wrongful deaths. Jury v. Ogden, 56 Ill. App. 100; The North Chicago R. Co. v. Brodie, 156 Ill. 317; The Chicago, Peoria and St. Louis R. Co. v. Woolridge, 174 Ill. 330, 51 N.E. 701; Hudnut v. Schmidt, 324 Ill. App. 548; Wilcox v. Bierd, 330 Ill. 571.

Based upon the established pattern of earning capacity of the decedents shown by the evidence, the verdicts are, in our opinion, so excessive as to indicate they were the result of passion or prejudice. Our conclusion in this respect is fortified by the fact that the jury entirely disregarded the evidence in awarding the same amount for the death of the father as the mother. The showing was made that he had not been employed for a period of five years, whereas she had been retired for approximately one year; that he was three years older than she; and that his income was little more than half of hers.

ON REHEARING.

It was contended on behalf of the defendant that there could be no recovery where the evidence shows the next of kin were in no way dependent upon the deceased, and that this is especially true since the amendment to the Injuries Act hereafter referred to. On the other hand, the plaintiff contended that there is a presumption of loss in the case of lineal kindred. This appeared to present the question whether the so-called presumption is a substitute for evidence, or is conclusive against proof of the actual facts; and the question is also raised whether the amendment to the statute in 1957, hereafter cited, effects a change.

Our research indicates that, if the deceased was an adult and the surviving next of kin are all adults, not dependent upon him in any way, there must be an evidentiary basis for the claim of pecuniary loss. But if the deceased was a child, there is a presumption of loss to the next of kin, which is a substitute for evidence. Whether the latter rule is changed by the statute is not before us in this case, and we do not pass upon it. Cases involving children are cited only for the purpose of comparison.

Apparently the first case involving a "presumption of loss" was City of Chicago v. Major, 18 Ill. 349, which involved the death of a minor child. Since the father was entitled to the child's services, the court presumed a loss. Since then the courts have stated added reasons for a presumption in case of death of a minor, among them being the fact that habits of industry and earning power have not yet been established, so that no proof thereof is possible. City of Chicago v. Scholten, 75 Ill. 468; Rockford, R.I. & St. L.R. Co. v. Delaney, 82 Ill. 198; City of Chicago v. Hesing, 83 Ill. 204; Foreman Bros. Banking Co. v. McInerney, 226 Ill. App. 647; Nelson v. Stutz Factory Branch, Inc., 254 Ill. App. 526; Trust Co. of Chicago v. Ancateau, 317 Ill. App. 186.

Another class of cases which present no problem under the statute are those involving the wrongful death of a father who has been supporting his minor children. It is obvious that the loss of their means of support is a "pecuniary loss." These are the ordinary and usual cases which justify substantial damages. The fact that this type of loss is commonly present probably made its absence conspicuous. Some opinions have said, where the deceased had minor children dependent on him, this raises a "presumption of loss." It would seem more accurate to say that proof of these conditions is more than a basis for presumption, rather it is actual proof of loss.

There remain still other cases, like this, in which the next of kin were adult, independent, and receiving no support from the deceased who was also an adult. What evidence can they offer to show pecuniary loss? Apparently, the earliest recognition that this might be a problem is in C. & R.I. Railroad v. Morris, 26 Ill. 400, where the court said: "We can imagine many cases where persons have been for years disconnected and isolated from family connections and in reasonable probability would never render or afford any support to their families or relatives. . . . In case of their death there would be no next of kin who could sustain loss because they could have derived no benefit from the continuance of their lives."

In Conant v. Griffin, 48 Ill. 410, 412, it was held that the statute only provides for compensation for pecuniary loss, not for vindictive or exemplary damages, and the evidence should be confined to pecuniary loss.

However, there arose a line of cases in which, though there was no monetary contribution to support, services had been rendered. It has been developed that services may have a money value which justify compensation for their loss. An early case was C. & W.I.R.R. Co. v. Ptacek, 62 Ill. App. 375, affirmed in 171 Ill. 9. This involved the wrongful death of a widow survived by four adult children. Three sons lived with her, in her home, and they paid the cost of keeping the table. The Appellate Court recognized that, since the children were adults and self-supporting, there could be no "presumption" of pecuniary loss. The opinion states the court was "much troubled" by the question of loss, but finally affirmed a verdict after a partial remittitur. On review, the Supreme Court held that the amount of damages was subject to final review in the Appellate Court, but passed on the question of law whether there was no evidence of compensable damage, so that only nominal damages should have been allowed. It decided that there was some evidence of services tending to prove that the adult children derived a benefit from their mother's life, so it could not say as a matter of law there could be only recovery of nominal damages.

The concluding part of the last cited opinion stated that damages need not be proved in dollars and cents, but "having proved such kinship as raises a presumption of pecuniary loss, or offered proof of loss in cases of collateral kindred or adult children, the jury must, ...


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