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Elliott v. Willis

OPINION FILED SEPTEMBER 30, 1982.

RONALD ELLIOTT ET AL., EX'RS, ET AL., APPELLANTS AND APPELLEES,

v.

HILDA WILLIS ET AL., APPELLEES AND APPELLANTS.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

On April 13, 1976, Paul Elliott was killed as a result of a collision between the automobile he was driving and a pickup truck driven by defendant Hilda Willis. The executors of the estate filed a wrongful death action in the circuit court of McLean County pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) against Hilda Willis and her daughter, Carol, whose truck Hilda was driving at the time of the accident. Verla Elliott, Mr. Elliott's widow, also brought suit individually for her own personal injuries.

During the conference on jury instructions the defendants tendered defendants' instruction No. 3 to the trial court. This is a modification of Illinois Pattern Jury Instruction (IPI), Civil, No. 31.07 (2d ed. 1971). It read:

"In determining `pecuniary injuries' you may not consider the following factors:

1. The pain and suffering of the decedent;

2. The loss of decedent's society by the widow and next of kin;

3. The grief or sorrow of the widow and next of kin."

(Emphasis added.)

The plaintiffs objected to the language in paragraph 2. The instruction was given by the court over the plaintiffs' objection.

The jury returned verdicts awarding Verla Elliott $50,182.50 for her own personal injuries and awarded the estate $4,500 (stipulated prior to trial to be the value of Paul Elliott's car).

A judgment order was entered by the trial judge on February 20, 1979, and modified without objection on February 22, 1979. On February 23, 1979, a post-trial motion was filed by the estate requesting a trial on damages only or a new trial on all issues. A hearing was held on March 19, 1979, at which time the post-trial motion filed by the estate was denied. The estate immediately filed a notice of appeal.

On March 20, 1979, the defendants filed a post-trial motion seeking relief from both judgments. A hearing was held on March 29, 1979, and the defendants' motion was denied. Defendants filed their notice of appeal on April 10, 1979.

The appellate court on its own motion found that the defendants' notice of appeal was not timely filed and dismissed their appeal. (89 Ill. App.3d 1144.) The appellate court agreed with the estate's assertion on appeal that the verdict was too low as a matter of law. The appellate court also found that the jury should have been instructed concerning Verla Elliott's loss of consortium. The plaintiff estate has also complained on appeal that the trial court erred in refusing to instruct the jury on loss of accumulation to the estate caused by the payment of estate taxes. The appellate court concluded that the trial court was correct in ...


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