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Elliott v. Willis





APPEAL from the Circuit Court of McLean County; the Hon. LUTHER H. DEARBORN, Judge, presiding.


Rehearing denied December 8, 1980.

Paul Elliott died April 13, 1976, when the car he was driving collided with a pickup truck driven by Hilda Willis. His estate brought a wrongful death action against Hilda and her daughter, Carol, as principal, because Hilda was driving Carol's mail route that day. Verla Elliott, widow of Paul Elliott and a passenger in his car, sued Hilda and Carol Willis for her own personal injuries. The trial court entered judgment on the jury's verdict; the jury awarded Verla Elliott $50,182.50 for her own personal injuries, which she does not appeal. The jury awarded the estate only $4,500, from which amount the estate appeals.

The estate argues that the jury's verdict is too low as a matter of law and finds further error in the trial court's refusal to instruct the jury concerning Verla Elliott's loss of consortium and the estate's loss of accumulation caused by the payment of estate taxes. We agree that the verdict was too low and that the jury should have been instructed concerning consortium. The trial court's refusal to instruct the jury on estate taxes was correct.

• 1 Evidence concerning the companionable nature of the Elliotts' relationship was introduced at trial; the trial court properly admitted this evidence but incorrectly refused to instruct the jury on the effect and use of the evidence. The consortium question is not resolved by pretending that the admission of the evidence, without a jury instruction on it, was sufficient. To so hold would create anomalies concerning evidence and instructions: admissible evidence not entitled to instruction would be in limbo, occupying a nether zone between materiality and immateriality. The estate should have been permitted the instruction on lost consortium, i.e., lost services, society, companionship, and sex. The purpose of the wrongful death statute is to compensate a family, as plaintiffs, for the injury done to them by the actions causing the death of their family member. Section 2 of "An Act requiring compensation for causing death by wrongful act, neglect, or default" (Ill. Rev. Stat. 1979, ch. 70, par. 2) (Wrongful Death Act) provides:

"[T]he jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person."

• 2 The ban in Illinois Pattern Jury Instruction, Civil, No. 31.07 (2d ed. 1971) (IPI), excluding society as an element of loss in a wrongful death action, is not justified by the decisional law in Illinois. Treating the major Illinois cases on this and related matters as a whole, the thrust of the case law points to a liberal, expansive interpretation of the pecuniary loss standard. Several cases imply compensation for lost consortium or society, yet do not expressly permit it. In Hall v. Gillins (1958), 13 Ill.2d 26, 147 N.E.2d 352, instead of suing under the Wrongful Death Act, a widow and son brought a common law tort action for "destruction of the family unit." Writing for a unanimous court, Justice Schaefer minimized the differences between the recovery sought by the plaintiffs and the damages recoverable under the Wrongful Death Act. The court said:

"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." (13 Ill.2d 26, 31, 147 N.E.2d 352, 355.)

Justice Schaefer then referred to the presumption accorded surviving kin of a substantial economic loss and to the cases permitting children to recover for lost instruction and guidance upon the death of their parent. Yet Hall did not specify what elements of damage sought in the new tort were excluded from recovery in wrongful death. The surviving spouse and lineal descendants are presumed, however, to have suffered a substantial pecuniary loss, and the clear implication, repeated in other cases, is that in a wrongful death action the verdict will be sufficiently high that the plaintiff will not seek on review recovery for losses difficult to measure, such as society.

• 3 Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, held that a wife could maintain an action for lost consortium resulting from the nonfatal injuries to her husband. Thus, with recovery for consortium permitted when a spouse is merely injured, logic dictates that recovery be allowed when death occurs. The only basis in Illinois for excluding consortium as an element of loss when death occurs is that the suit must be brought under the Wrongful Death Act; the action approved in Dini was non-statutory. Yet in the case of death, the harm inflicted upon the marital relationship is more final and generally greater. Furthermore, the existence of the statute should not be viewed as an obstacle to compensation; the cases have emphasized its remedial nature and invite us to interpret it as permitting compensation for consortium.

In Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, a wife brought a common law count for consortium lost upon the death of her husband; the court refused to permit the count on the grounds that the Wrongful Death Act provided a nearly equivalent remedy. Knierim acknowledged the conclusion in Dini that the husband/wife relationship warranted legal protection but found that the Wrongful Death Act sufficiently protected the marital interest by presuming a substantial "pecuniary" loss without requiring proof of actual loss. Knierim held that "the differences between an action for loss of consortium resulting from the death of a husband and an action for pecuniary loss under the Wrongful Death Act are not sufficiently significant to warrant us recognizing the action for loss of consortium as an additional remedy available to the widow." (22 Ill.2d 73, 82-83, 174 N.E.2d 157, 162-63.) Significantly, the court focused on the duplicative nature of the wife's common law count for lost consortium rather than on the old common rule prohibiting actions based on the death of another person. Knierim treated the wrongful death action and the common law count as overlapping alternatives; the common law count was then unnecessary precisely because the statutory remedy permitted recovery for this sort of injury. Yet the court did not expressly hold that consortium was a compensable element in a wrongful death action.

Thus, Illinois case law permits either spouse to sue for loss of consortium following nonfatal injuries to the other spouse and implies that for death, the Wrongful Death Act provides compensation sufficient to obviate a common law action for lost society or consortium. To reflect this, the jury instruction should have included consortium as an element of damages recoverable in a wrongful death action.

The method established in the Wrongful Death Act for dividing awards among the surviving family members does not prevent recovery for loss of ...

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