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Mortensen v. Sullivan

JANUARY 19, 1972.

PETER L. MORTENSEN, APPELLANT,

v.

HELEN A. SULLIVAN, APPELLEE.



APPEAL from the Circuit Court of McHenry County; the Hon. JAMES H. COONEY, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Peter L. Mortensen, the eighteen-year-old minor son of Peter L. Mortensen Sr., and Helen A. Sullivan was killed in an automobile accident in December of 1969. Helen A. Sullivan was appointed administratrix of his estate which consisted solely of the cause of action. On June 8th, 1970, she filed a verified petition to settle the cause of action for wrongful death and for leave to make distribution of the proceeds thereof. The settlement in the sum of $12,000 was approved by the court and the court made distribution thereof in equal amounts to Helen A. Sullivan, the Administratrix, and his two sisters, and made no distribution to the father.

The parents of the decedent were divorced approximately ten months before his death and the custody of the decedent was awarded to the mother. After the divorce both parents had remarried. Shortly before the death of the decedent the father, who had been making weekly support payments of $10.00, had filed a petition in the divorce proceedings to be relieved from further support payments as the minor was employed and self-supporting.

Subsequent to the above the father of the decedent filed a motion to vacate the order of distribution on the ground that he had not received notice of the hearing for approval of the settlement and distribution. A new hearing was thereupon had by the court. At the hearing the mother testified substantially that the decedent had been residing with her; that he was in fact employed and that he as a minor had purchased a car in her name and that she paid the balance due thereon in the sum of $2456 after the son's death. The father relied almost exclusively on the legal argument of presumption of pecuniary loss in favor of the lineal next of kin. In Ferraro v. Augustine (1964), 45 Ill. App.2d 295, 196 N.E.2d 16, the court there stated:

"We conclude that there is a presumption of pecuniary loss in favor of the lineal heirs of the deceased in a wrongful death action from the relationship alone, and that the deceased's parents are such lineal next of kin."

The trial court following the hearing, reaffirmed his decision that the father was in fact entitled to no part of the wrongful death settlement relying somewhat on the fact that the father had filed a petition to be relieved from further support payments for the minor decedent.

• 1 The question presented to this court is whether or not the father under the provisions of the Ill. Rev. Stat. 1969, ch. 70, par. 2, is entitled to share in the proceeds of the death settlement of his son under the circumstances outlined above. Distribution under this Act, as amended in 1955, shall be made in the following manner:

"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."

Surprisingly, despite the multitudinous settlements made in wrongful death actions in this State no case directly in point has apparently ever reached the reviewing courts of this State. The Wrongful Death Act of the State of Illinois, Ill. Rev. Stat. 1969, ch. 70, par. 2, was originally enacted in 1853. The Illinois Act was copied from the Wrongful Death Act of the State of New York which was enacted in 1847. The New York Act was substantially a copy of the English Wrongful Death Act commonly known as Lord Campbell's Act, 9th and 10th Victoria, Ch. 93. However, in 1967 the New York Wrongful Death Act was incorporated into and as a part of the New York Estates Powers and Trust Law. While the present New York Statute pertaining to wrongful death matters is in many respects comparable to our present act, the New York act does contain the following provision in section 4-1.4 dealing with the statute of descent and distribution, in the following manner:

"No distributive share in the estate of a deceased child shall be allowed to a parent who has failed or refused to provide for, or has abandoned such child during infancy, whether or not such child dies during infancy, unless the parental relationship and duties are subsequently resumed and continue until the death of the child."

It can thus be seen the present New York statute is more explicit with regard to a question somewhat similar to the issue raised here.

Appellant contends that there is a rebuttable presumption of some substantial damage in favor of lineal next of kin by reason of the relationship alone. Ferraro v. Augustine, supra, has been cited by this court with approval in Jung v. Buelens (1966), 77 Ill. App.2d 391 at 398, 222 N.E.2d 707. In Ferraro the court criticized Barrow v. Lentz (1958), 17 Ill. App.2d 527, 15 N.E.2d 120, and in refusing to follow that case rejected the contention that the presumption of loss is a substitute for evidence only with regard to a deceased minor's habits of work and industry, and therefore applied the presumption also in the case of an adult deceased child.

Appellant further contends that in our case, there is no basis in the record for a holding that such a presumption was rebutted.

Appellee disagrees contending that such a presumption would remove much of the court's discretion in making allowances for the varieties of financial circumstances pertaining to various lineal next of kin. In our view, appellee's point has merit, except that her objections may be substantially met by allowing the Judge great latitude in his decision as to whether the presumption has been rebutted or not. We agree with the appellant, however, to the extent that a presumption of loss as pertaining to a trial court's determination of dependency, would protect such a court from having to initially engage in highly speculative evidentiary considerations, at least where the question involved is that of the future attitudes and conduct of a deceased, ...


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