Appeal from the Circuit Court of Vermilion County; the Hon.
JOHN F. SPIVEY, Judge, presiding. Affirmed.
Rehearing denied March 21, 1962.
Plaintiff, as administrator of the estate of his deceased wife, Marjorie Dodson, brought suit to recover damages for her death alleged to have been wrongfully caused by defendant. Trial by jury resulted in a verdict and judgment in favor of the plaintiff for $20,500. Defendant has appealed.
The sole question presented on this review is whether under the evidence in the record the amount of the verdict is excessive.
The defendant contends that plaintiff failed to establish that the death of his wife resulted in any pecuniary loss to her next of kin and consequently the proof was insufficient to sustain a verdict for more than nominal damages.
At the time of her death, the deceased was 47 years of age and in good health. She lived with her family consisting of her husband, Keith Dodson, and her children Mary Kay, aged 15; Elaine, aged 18; and Donald, aged 20. Another son, Wayne, aged 22 years, was not living in the family home. Elaine Dodson, who married subsequent to her mother's death and whose name was then Elaine Bury, testified that she was unmarried and lived at home at the time of her mother's death; that she was then employed at the University of Illinois; that her mother drove her to Fithian each morning to catch a ride to work and brought her home from that point each evening; that her mother did all the cooking for the family, did the housework, milked the cows, fed the chickens, livestock and other animals, gardened, canned food, made clothing, did the washing and ironing and helped her husband with his bookkeeping.
Mary Kay Dodson testified that at the time of her mother's death she was attending high school; that her mother took her to the school bus each morning and on many occasions brought her home from school. This witness and her brother Donald and her father, Keith Dodson, all testified as to the work performed by the deceased in and about the family home, which included washing, ironing, cooking, making clothing and tending the livestock.
It is argued by the defendant that the evidence given by these witnesses is insufficient to constitute proof of pecuniary loss within the meaning of the Wrongful Death Act, because it fails to show that the decedent contributed any money to the support of her family and also that there is no proof of the reasonable value of the services performed.
The Wrongful Death Act provides that actions thereunder shall be brought by the personal representative of the deceased person; that the amount recovered shall be for the exclusive benefit of the widow and next of kin of decedent; and that 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 wife and next of kin. (Ill Rev Stats 1959, c 70, § 2.) If in such an action the next of kin are lineal kinsmen of the deceased, the law presumes some substantial damages from the relationship alone. However, where the next of kin are collaterals, their damages are only such as are proved. In other words, the death alone is presumed to result in "pecuniary injuries" to the next of kin who are lineal descendants of the deceased and whether they were in the habit of claiming and receiving pecuniary assistance from the deceased becomes an immaterial question. ILP Death, Sec 30; Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708; Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352; Dukeman v. Cleveland, C.C. & St. L.R. Co., 237 Ill. 104, 86 N.E. 712.
In Howlett v. Doglio, supra, the rule is thus stated:
"In cases arising under the Wrongful Death Act, if the next of kin are lineal kinsmen of the deceased, a presumption of pecuniary loss obtains from the relationship, alone, sufficient to sustain a verdict and judgment awarding substantial damages, without proof of actual loss."
An argument similar to that of defendant was advanced in the Dukeman case. There the deceased left surviving her a husband and her sons, Louis and James. Louis was married and lived with his family, while James, though 42 years of age was unmarried and lived at home with his father and mother. The evidence showed that the deceased was the housekeeper for her husband and son and that the three lived together; that the deceased did all the cooking, washing and housecleaning; that she was in good health and not only did her own housework, but also rendered help to the family of her married son. The trial court refused to instruct the jury that anything more than nominal damages could be recovered and its ruling was assigned as error. The Supreme Court held the instruction to have been properly refused and said:
"Under this evidence the court properly refused to instruct the jury that nothing more than nominal damages could be recovered. But aside from this, the rule is established in this State that where the next of kin sustained a lineal relation to the deceased the law presumes some substantial damages from the relationship alone."
Directly refuting defendant's contention that proof of the value of the deceased's services was essential to recovery of more than nominal damages is Ritthaler v. City of Chicago, 304 Ill. App. 151, 26 N.E.2d 150. In that case the deceased was 29 years old and a married woman. At the time of her death she was in good health and living with her husband in her parents' home. She was pregnant and not engaged in housekeeping or in any remunerative ...