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Edenburn v. Riggins

AUGUST 24, 1973.

CATHERINE L. EDENBURN, ADMR., OF THE ESTATE OF RUBY M. MENDENHALL, ET AL., PLAINTIFFS-APPELLANTS,

v.

WILLIAM RIGGINS, D/B/A BILL'S ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 20, 1973.

This appeal results from a dram shop action brought in the circuit court of Peoria County by two separate plaintiffs in two separate counts to recover damages for four minor children for loss of means of support which had been provided by two different persons. After trial by jury a single general verdict in the sum of $40,500 was returned in favor of the plaintiffs and judgment was entered accordingly. The trial court subsequently granted a motion to reduce the damages to the sum of $20,000 and ordered a new judgment in that amount. This appeal stems from the trial court's order reducing the amount of damages. The defendants in this appeal also allege error on the part of the trial court and present issues for review.

The factual situation which gave rise to this appeal is pertinent to some of the issues presented to this court and we therefore set forth the same in detail.

Ronald Mendenhall and Ruby Bee were married on November 19, 1967. At the time of the marriage Ruby had four children by a previous marriage, their names being Erma, Rebecca, Kenneth and Ronald Bee. It is admitted by Ronald that the youngest child might be his own.

The mother Ruby had worked as a nurses aid in a Peoria hospital for ten or eleven years and continued in such employment after the marriage until the family moved to Cuba, Illinois. In 1967 Ruby received wages in the sum of $2,971.88 and in 1968 before moving to Cuba she earned $2,061.60.

The husband Ronald is illiterate and his employment was as a gasoline service station attendant in Cuba where he earned $70 per week. In addition to this job he had additional income which he earned from topping trees, painting television towers and repairing television sets. On occasion he would earn from $200 to $300 per day. It was Ronald's custom to turn over his income to Ruby to pay the bills and care for the children.

From the record it appears that it was approximately four months after the family had moved to Cuba that tragedy ensued when Ronald killed Ruby by shooting her after a day of drinking various alcoholic beverages. A more detailed itemization of Ronald's drinking which culminated with the death of Ruby will be recited as it becomes pertinent to the issues presented in this appeal. Ronald pleaded guilty to the charge of involuntary manslaughter and was sentenced to a term of not less than two nor more than five years in the penitentiary. After Ruby's death Ronald did not provide for the support of her children.

Catherine L. Edenburn, the plaintiff, was appointed as guardian of the deceased Ruby's children, who at the time of the trial were of the following ages: Ronald, 5; Kenneth, 7; Rebecca, 8; and Erma, 12.

The complaint filed in the case before us contained two counts and was commenced pursuant to the provisions of the Dram Shop Act (Ill. Rev. Stat., ch. 43, sec. 135). Count I was brought in the name of the plaintiff as administrator of the estate of Ruby M. Mendenhall, deceased, for the exclusive benefit of the deceased's minor children. The plaintiff alleged that the minor children had lost a means of support, namely their mother, in that she had been killed by an intoxicated person and this count prayed for damages in the sum of $20,000. Count II was originally brought by Ronald Mendenhall and alleged that the children had lost a means of support from himself as a stepfather in that he had been incarcerated in consequence of the actions of an intoxicated person, namely himself. This count also prayed for damages in the sum of $20,000. For reasons which we do not deem to be material to this appeal, Count II was dismissed and an amended complaint was filed which substituted the plaintiff as guardian of the children instead of Ronald Mendenhall in Count II. The complaint then contained the original Count I and the new Count II, and the case proceeded to trial by jury. As previously stated the jury returned a single general verdict in favor of the plaintiff and against the defendants Riggins' and Beneventi's in the sum of $40,500.00.

• 1 It is the contention of the plaintiff that the trial court erred when it granted defendants' motion to reduce the jury's verdict and the judgment entered thereon from the sum of $40,500 to $20,000. In making a determination of this question we first direct our attention to the pertinent language of the Dram Shop Act:

"* * * recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 for each person so injured where such injury occurred prior to July 1, 1956, and not exceding $20,000 for each person so injured after July 1, 1956. * * * Ill. Rev. Stat., ch. 43, sec. 135.

The precise question presented is whether the statutory provision which we have set forth means that recovery for loss of support resulting from death or injury of any person shall not exceed $20,000 for each person so injured refers to the person furnishing the support or does it refer to the persons losing their means of support. This question was settled by our Supreme Court in the case of Moran v. Katsinas, 16 Ill.2d 169, 157 N.E.2d 38. Moran determined the legislative intent to be that the statutory limitation of recovery set forth in section 135 of the Dram Shop Act referred to the "provider" of support and not to the person or persons losing their support.

• 2, 3 In the instant case the minor children lost two "providers of support". One "provider" was their mother Ruby Mendenhall, who up until approximately four months prior to her death worked more than ten years as a nurses aid at a Peoria hospital and the other was their stepfather Ronald Mendenhall, who as we have stated worked at various jobs and gave his earnings to his wife to care for the children. In applying the statutory limitation on damages recoverable in this case we look at the language which states "that * * * recovery * * * for loss of means of support resulting from death or injury of any person * * * shall not exceed * * * $20,000 for each person so injured." (Ill. Rev. Stat., ch. 43, sec. 135). The controlling phrase is for each person so injured and in Moran that person was defined as the "provider" of the support. As we have stated the minor children involved in the case now before us had two "providers" hence their limitation of recovery is $20,000 per "provider" or a total of $40,000. We deem it to be immaterial in that in the present case those who lost their support from Ruby Mendenhall and Ronald Mendenhall are the same individuals, ...


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