Appeal from the Circuit Court of Winnebago County; the Hon.
Robert C. Gill, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Plaintiff, Thomas Trotter as administrator for the estate of Constance J. Trotter, was awarded damages in the amount of $7,000 and $2,125 for funeral expenses by a Winnebago County jury after a directed verdict on the issue of liability against defendant, Carmen M. Moore. Decedent, the 16-year-old daughter of plaintiff, was a passenger in a car driven by defendant at the time of a collision with an automobile driven by Dell E. Bailey in whose favor the trial court directed a verdict denying liability. The decedent died from injuries sustained in the collision. The circumstances of the collision September 12, 1978, are not an issue in plaintiff's appeal and no further reference to those facts is necessary.
Plaintiff raises three issues: (1) the trial court made an instructional error by disallowing the loss of decedent's society to be considered by the jury as an element of pecuniary injuries; (2) the verdict was inadequate as a matter of law; and, (3) the trial court erred in denying prejudgment interest from the date of death to the date of judgment.
Defendant asserts: (1) plaintiff failed to preserve the issue of the trial court's error on the loss of society as a compensable element of damages; (2) the recent supreme court holding in Elliott v. Willis (1982), 92 Ill.2d 530, is limited to the loss of consortium by a widow and should not be extended to the case at bar; (3) the jury's award was not inadequate; and (4) plaintiff was not entitled to prejudgment interest absent unreasonable or vexatious delay by defendant.
Defendant's contention that plaintiff waived the issue of loss of society by failing to object at the conference on instructions to defendant's tendered instruction on that issue is without merit. There is some language in the record which, when taken out of context, suggests such a conclusion. However, it is clear that at the outset of the trial plaintiff objected to the trial court's striking a provision of plaintiff's amended complaint claiming loss of society and continually objected to the trial court's refusal to permit an instruction or argument on the loss of society as an element of pecuniary loss.
At that time plaintiff directed the court's attention to the then recent decision of Elliott v. Willis (1980), 89 Ill. App.3d 1144, 412 N.E.2d 638 (Trapp, J., dissenting in part), wherein the appellate court, sitting in the fourth district, held that loss of consortium is not precluded as an element of pecuniary loss under the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 1 et seq.). Plaintiff indicated that Elliott was on appeal to the Illinois Supreme Court.
• 1 The trial court ruled that it would use the existing Illinois Pattern Jury Instruction (IPI), Civil, No. 31.07 (2d ed. 1971) on the issue and specifically stated it would not follow the appellate court's decision in Elliott. It is clear from the record that plaintiff continued his objection to the trial court's position on the issue during the conference on jury instructions and in his post-trial motion. More specifically, as the parties and the court sorted through the several jury instructions bearing on loss of society, it is unmistakably apparent that the trial court was fully aware of plaintiff's desire for his tendered instruction on the subject and the trial court determined that it not be given. The plaintiff's claim of error was preserved.
After plaintiff filed his appellant's brief in this cause, but before the appellee's brief was filed, the Illinois Supreme Court rendered its decision affirming the appellate court in Elliott. (Elliott v. Willis (1982), 92 Ill.2d 530.) The supreme court held in Elliott that the language of IPI Civil No. 31.07 that indicates that in determining "pecuniary injuries" the jury may not consider "[t]he loss of decedent's society by the widow and next of kin" is no longer valid. 92 Ill. 530, 541.) The court held that its decision allowing juries to be instructed on the loss of consortium by surviving spouse and Wrongful Death Act cases applies to the Elliott case and to cases not finally adjudicated by the date its Elliott opinion was filed. The instant case is among those not finally adjudicated on the date of the filing of the Elliott opinion.
The supreme court opinion in Elliott construed the following instructions:
"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." (92 Ill.2d 530, 533.)
The plaintiffs objected to the language of the second numbered paragraph. The appellate court in Elliott agreed with the plaintiffs that the jury should have been instructed on the plaintiff's loss of consortium. The supreme court characterized the issue before it as whether loss of consortium is compensable ...