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Ferraro v. Augustine

JANUARY 21, 1964.

ELEANOR L. FERRARO, ADMINISTRATOR OF THE ESTATE OF JOHN J. DE LEO, DECEASED, PLAINTIFF-APPELLEE,

v.

FRANK M. AUGUSTINE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding. Affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

In this action, plaintiff, Administratrix of the Estate of John J. De Leo, deceased, sought to recover from defendant, in Count I of the complaint, the sum of $30,000 for pecuniary injuries sustained by the next of kin by reason of the wrongful death of John J. De Leo, allegedly caused by defendant. In Count II plaintiff sought recovery of $5,000 for hospital and funeral bills incurred. A trial was had before a jury and verdicts were returned under Count I in the sum of $17,800 and under Count II in the sum of $1,884.40. Defendant appeals from the judgment entered by the Court on these verdicts.

In his brief the defendant has raised no questions as to the pleadings, nor does he seek to contest the judgment in the sum of $1,884.40 rendered against him under Count II. In addition, although liability was contested in the trial court, the defendant in this appeal has conceded his responsibility to respond for damage in some amount to the plaintiff under the allegations in Count I. The defendant does, however, contend that the amount of the contested judgment is greatly excessive; that it is the result of prejudicial conduct on the part of the trial judge; and that it is the result of errors committed at the trial in the admission and exclusion of evidence. The defendant also contends that it was error not to grant a continuance which he requested both before the assignment and trial judges, and that the trial judge entered a void order when he allowed witness fees to plaintiff.

The facts of the case are as follows. The decedent, John J. De Leo, was struck and killed by an automobile operated by defendant. Decedent left as his next of kin, John A. De Leo and Kate De Leo, his father and mother, and several brothers and sisters. The plaintiff, Eleanor L. Ferraro, a sister of the decedent, was duly appointed administratrix and filed this suit against defendant on March 15, 1961. The decedent was a single man, thirty-five years of age and lived with his parents, as did his sister, Virginia De Leo, an unmarried daughter and her minor child. Although decedent had several brothers and sisters it was admitted that none of them sustained any substantial pecuniary loss as the result of his death. John A. De Leo, the father of decedent, was 71 years of age at the time suit was commenced. He had retired in 1959, but was still engaged in part-time work. Kate De Leo, decedent's mother, was 74 years of age and a housewife.

The defendant first contends that where the decedent was an adult, and the next of kin are also adults, as in the case at bar, the latter, in order to recover more than nominal damages must adduce an evidentiary basis for a verdict, and there is no presumption in that case of a pecuniary loss from the death alone, even though the next of kin are lineal.

To support this position our attention is called to the case of Barrow v. Lence, 17 Ill. App.2d 527, 151 N.E.2d 120. In this wrongful death action the evidence showed that the married daughter was living with her husband in their own home separate and apart from her parents and that her deceased parents had contributed no support nor rendered any services on her behalf. Upon this record the Appellate Court for the Fourth District reversed the verdicts and judgments entered in the consolidated death actions and required a remittitur or a new trial since they found that the verdicts were excessive and the result of passion and prejudice. The Appellate Court in a long answer to a petition for rehearing attempted to set out the law in terms of presumption of pecuniary loss in wrongful death cases. The court stated:

Sometimes there is reference to a presumption in favor of lineal next of kin, but always the decisions speak of an evidential basis for the fixing of damages, without reliance on any presumption. For this reason, we conclude the so-called presumption has no importance, except in the case of death of a child who has not yet formed habits of industry, nor a pattern of earning ability.

This attempt to remove the presumption of pecuniary loss in favor of lineal next of kin except in the case of a child was neither sustained by precedent nor was it to be long-lived.

A few months before the court made its decision in Barrow, the Supreme Court handed down its decision in Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352. In that case, Mr. Justice Schaefer, speaking for the court wrote:

The term "pecuniary injuries" has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case. Each plaintiff alleges deprivation of support as well as deprivation of the companionship, guidance, advice, love and affection of the deceased. Loss of support is of course an element of damages under the statute. Indeed so far as these plaintiffs are concerned, since they are the widow and a lineal kinsman, "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."

We can only assume that when the Supreme Court speaks of an operative presumption that this presumption is of some importance and validity. It is true, as was pointed out by the court in Barrow, that in many cases in which the presumption is mentioned, there was additional evidence of pecuniary loss and the presumption became only a legal principle available, but not relied upon by the plaintiff. However, the unmistakable conclusion remains that the presumption in favor of pecuniary loss and in favor of the lineal next of kin is a viable concept in Illinois.

The Appellate Court for the Third District held in Dodson v. Richter, 34 Ill. App.2d 22, 180 N.E.2d 505 that a verdict in the wrongful death action in the amount of $20,500 was not excessive. The husband had brought suit and the defendant contended that the plaintiff failed to establish that the death of his wife resulted in any pecuniary loss to her next of kin and consequently it was claimed that the proof was insufficient to sustain a verdict for more than nominal damages. There the decedent was forty-seven years of age, in good health and living with her family, consisting of her husband and three children. The Appellate Court, after reviewing Barrow v. Lence, said:

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. (Emphasis ours.) 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 NE 712.

We have shown that aside from an attempted departure from the general rule in Barrow, the courts of this state have held that there is a presumption in favor of pecuniary loss and substantial damages which operates in favor of the lineal kinsmen of the victim in a wrongful death action. The question would thus seem to be whether the prospective beneficiaries here, the parents of the ...


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