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Flynn v. Vancil

DECEMBER 6, 1967.




Appeal from the Circuit Court of Rock Island County, Fourteenth Judicial Circuit; the Hon. J.F. WILAMOSKI, Judge, presiding. Judgment reversed and cause remanded.


This appeal from the Circuit Court of Rock Island County, originated as an action by Ronald E. Flynn, as Administrator for the Estate of Rhonda Kay Flynn, by Ronald E. Flynn, individually, for medical and funeral expenses, by Ronald E. Flynn, individually for his injuries and by Joyce Flynn, individually for her injuries against Defendant-Appellee, Patrick Vancil. The complaint alleged, under separate counts, a cause of action under the Wrongful Death Act (Ill Rev Stats, c 70, § 1) for the death of Rhonda Kay Flynn, a fourteen-day-old infant, and actions of negligence for injuries to Ronald E. and Joyce Flynn individually and Ronald E. Flynn for the funeral and medical expenses of Rhonda Kay Flynn, Ronald and Joyce being the parents of Rhonda Kay. The jury found in favor of all Plaintiffs, against Defendant, and separately assessed the damages for each Plaintiff, awarding zero damages with respect to the wrongful death count. The trial court entered judgment on this verdict and from that portion of the judgment finding the issues for the Administrator but finding no damages, Plaintiff appeals.

The sole issue on appeal in this cause, certified by the trial judge and approved by opposing counsel, is "Can a jury verdict of liability for the death of a two-week-old female awarding no damages for the administrator for the benefit of the surviving mother and father be sustained where there is evidence of incurable congenital physical defect impairing the health of the child?"

The propriety of the jury verdict and judgment of the trial court depends upon the application of the rule that there is a presumption of substantial pecuniary damages where the survivor, entitled to bring a wrongful death action, stands in a lineal relationship to the decedent. The Wrongful Death Act provides for recovery of pecuniary loss only. In Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170, pecuniary loss is held to mean what the life of the decedent was worth, in a pecuniary sense, to the survivors, and it was said that such loss is to be determined from the proof of the personal characteristics of the deceased, his prospects in life, his mental and physical capacities, etc. In City of Chicago v. Scholten, 75 Ill. 468, it was held that in the case of a deceased infant, characteristics such as age, sex, health, mental and physical capacities, habits, education and experience, all of which tend to relate to the child's future circumstances, may be considered in the enhancement of damages.

Because these relevant characteristics are not yet identifiable in the case of an infant, the courts have, in such a case, allowed recovery without proof. Otherwise, great injustice would be done. But there is no authority which we have found which suggests that allowing a plaintiff to recover without proof requires denying to a defendant probative evidence which might mitigate or tend to reduce the presumed loss. To prohibit so-called "rebutting or mitigating evidence" would deny to the defendant the right to have the loss based upon the actual personal characteristics of the deceased infant.

So, we hold that the negative can be shown and the defendant may introduce evidence which will lessen, or tend to lessen, the loss otherwise presumed.

But, in the instant case, no such mitigating evidence was introduced. The problem in this Court arises solely upon the facts contained in the certified question. These facts are that the decedent was a female child, two weeks of age, suffering an incurable congenital physical defect which impaired her health. It is obvious that such facts, standing alone, are not sufficient to negative every individual characteristic, if, indeed, that is possible, which may have been possessed or later developed by the infant. Accordingly, we believe that the presumption of substantial pecuniary damages is not overcome by the certified question, and the jury's finding of zero damages cannot stand.

The judgment of the Circuit Court of Rock Island County is reversed and remanded for a new trial.

Judgment reversed and cause remanded.

ALLOY, J., concurring specially.

I concur in the conclusion that the judgment should be reversed and the cause remanded. I cannot, however, concur with the language therein which implies that the presumption of substantial pecuniary damages could be overcome by evidence which might be introduced on behalf of defendant. We are all in agreement that a presumption of substantial pecuniary loss to the lineal next of kin arises by reason of the relationship alone. In my judgment this presumption may not be destroyed. It is the fact of relationship alone from which the presumption arises (Dodson v. Richter, 34 Ill. App.2d 22, 180 N.E.2d 505). I feel that the rule in Illinois is, and should be (when lineal next of kin survives), that the presumption of substantial damages for pecuniary loss when a young child is killed is a viable concept and should be given effect by the courts (Ferraro v. Augustine, 45 Ill. App.2d 295, 299, 196 N.E.2d 16). While evidence may operate to reduce the amount of such damage, nevertheless there must remain the right to recover substantial damages in a case such as is before us.

Without minimizing the cases which emphasize the presumption of substantial pecuniary loss by reason of the relationship alone, irrespective of the age of the decedent, certainly, in the case of the death of a minor child, this presumption should be a durable one. No one can say that a young child, however ill or handicapped at the moment, would be of no pecuniary value to the next of kin. Developing medical science and the adaptation of individuals of very limited and even nonexistent physical abilities have demonstrated that we cannot, at any point of time, say that a certain individual will have no pecuniary value to his next of kin at any time in the future. To cite a practical example in our present experience, consider the case of the famous Helen Keller who was born both blind and deaf. A pragmatic approach to a problem of that sort would have been that Helen Keller could be nothing but an economic burden the rest of her life. Even communicating with her would seem hopeless. How wrong this would have been has been demonstrated by this remarkable lady's career.

To permit a jury to speculate and conclude on the basis of any evidence presented at a time when the child is very young, that such child would be of no pecuniary value to his parent, is an improper application of the rules relating to the presumption under consideration. This presumption of substantial pecuniary loss arises from the common experience of men, and, to the extent that the courts have presumed such substantial loss to next of kin, it constitutes a durable presumption which cannot be wholly destroyed. It would be impossible to prove affirmatively at this stage that any pecuniary loss would be sustained by the parents. Similarly, it is also impossible to prove that no pecuniary loss would be sustained. The sole effect of evidence which could be ...

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