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Frederick v. Zeigler Coal Co.





APPEAL from the Circuit Court of Douglas County; the Hon. JOSEPH C. MUNCH, Judge, presiding.


On June 1, 1973, Byron Frederick was killed when he fell from a scaffold while working on the construction of a silo. His employer was the subcontractor, First Colony Corp., the third-party defendant. The general contractor was defendant Roberts & Schaefer Co., and the defendant Zeigler Coal Company owned the land on which the fatal accident occurred.

The decedent, Byron Frederick, is survived by (1) Peggy Frederick, his widow, and (2) Byron Frederick, Jr., their son (born October 31, 1973); by (3) Melissa Frederick (born September 9, 1970), the daughter of decedent and his second wife Cynthia Frederick (Jones); and by (4) Rodney Frederick (born July 26, 1966) and (5) Felicia Frederick (born August 26, 1965), the children of decedent and his first wife Sharon Frederick (Mize).

In an application for an award under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), the widow and the four minor children were to each receive about $6,000. However, that action was pending on appeal when the following events occurred.

Attorney Jay Janssen filed a complaint based upon the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.) in the name of Peggy Frederick, as widow of Byron Frederick, and as next friend of all the above named four minor childen. However, Attorney Janssen had not been retained by Melissa, Rodney, or Felicia Frederick or their parent. Later, Attorney Loren Thomson was retained to represent Rodney and Felicia at the trial level proceedings. Melissa's mother never authorized any attorney to represent Melissa in the trial court.

The two defendants and the third-party defendant made a settlement offer of $145,000 to settle both the Workmen's Compensation Act and Structural Work Act claims of the widow and the four minor children. A hearing on the settlement offer was held. At the hearing, Peggy Frederick (on her behalf and on behalf of Byron, Jr.), Melissa's mother and Rodney and Felicia's mother, testified that they were all satisfied with the settlement offer. Arguments were heard on the subject of the method for dividing the settlement. Attorney Janssen contended that the proceeds should be divided on the basis of dependency, but another proposal was that the division be on a per capita basis.

The trial court entered an order settling the claims for $145,250. The court divided the net settlement into five equal shares for the widow and the four minor children. Also, Attorney Janssen and Attorney Thomson were each awarded fees in the amount of one-sixth of the settlement plus expenses.

The widow, Peggy Frederick, by her attorney Janssen, appeals only from the order of distribution. On appeal, she now contends that she is entitled to the entire amount of the settlement, or alternatively, that the settlement should have been divided upon a dependency basis.

• 1 Although the theory that the widow is entitled to the entire settlement award could normally be either successfully maintained or at least persuasively argued as to that portion of the settlement based solely upon the Structural Work Act, that theory can now be summarily rejected, for it was not raised in the trial court and is, therefore, waived. Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 324 N.E.2d 417.

As mentioned above, the widow could have been entitled to the entire award of that portion of the settlement based upon the Structural Work Act. The Structural Work Act provides, in relevant part, that:

"* * * in case of loss of life * * * a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children; or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives." Ill. Rev. Stat. 1971, ch. 48, par. 69.

Cases construing this same language in the Coal Mining Act (Ill. Rev. Stat. 1975, ch. 93, par. 1.01 et seq.) have held that the language "authorizes but one action, — but one recovery for the entire loss. If the deceased leaves a widow surviving, she, under the statute, is entitled to sue and recover for the loss * * *." (Beard v. Skeldon (1885), 113 Ill. 584, 586. See also McFadden v. St. Paul Coal Co. (1914), 263 Ill. 441, 105 N.E. 314.) Furthermore, Beard was cited with approval by the court in interpreting the provisions of the original Structural Work Act in Claffy v. Chicago Dock & Canal Co. (1911), 249 Ill. 210, 94 N.E. 551. But see Scully v. Otis Elevator Co. (1971), 2 Ill. App.3d 185, 275 N.E.2d 905.

• 2 Yet, she suggested only two alternatives to the trial court. By those two plans, the distribution might have been according to dependency or might have been based on a per capita division. The trial court concluded that the per capita method was preferable because a dependency related plan is too uncertain due to unknown variables (such as medical and educational expenses) which could affect the future fairness of the plan. Upon this record and in view of the waiver, we affirm the per capita distribution.

However, we feel compelled to vacate and remand as to the distribution plan with respect to the award of attorneys' fees. Attorney Janssen filed suit on behalf of Peggy Frederick as widow of the decedent and as next friend of the four minor children. But he had not then ...

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