Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ralston v. Plogger

OPINION FILED APRIL 10, 1985.

RUSSELL RALSTON, ADM'R OF THE ESTATE OF ROMNEY RALSTON, DECEASED, PLAINTIFF-APPELLEE,

v.

HAL W. PLOGGER ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

The plaintiff, Russell Ralston, brought this wrongful death action as administrator of the estate of Romney Ralston. After trial on the merits, a jury returned a verdict in favor of the defendants, Hal W. Plogger and Houlette & Seaton, Inc. The trial court, however, granted the plaintiff's motion for a new trial, and we granted the defendants leave to appeal under Supreme Court Rule 306. 87 Ill.2d R. 306.

On September 26, 1981, nine-year-old Romney Ralson was fatally injured when a pickup truck struck him. Plogger was driving the truck on behalf of his employer, Houlette & Seaton. The accident occurred on Emerson Airline Road at about 11:30 a.m. Plogger testified he first saw the boy on a bike about 75 yards away. The boy was riding west near the left edge of the road. Plogger was also traveling west at about 45 or 50 miles per hour in the right lane. The boy made a sharp turn and started to come to the right side of the road. Plogger took his foot off the accelerator to slow down, but he did not apply the brakes. He attempted to pull his truck off the road to the right. The left fender of the truck collided with the bike at the edge of the road. Plogger drove his truck completely off the road. When he eventually stopped, he saw the boy lying with his head on the edge of the road.

Ambulance attendants, who arrived at the scene a short time later, testified the boy's body was about four feet off the road. The bicycle was lying 15 to 20 feet east of the body and between 5 and 10 feet off the road. One of the attendants testified that tracks made by the truck showed it had left the road completely about 50 to 75 feet east of the bicycle. That attendant, Thomas Stults, was also the deputy coroner. At the accident site, Plogger told him that he had seen the boy and had taken his foot off the accelerator to slow down. He glanced in the rear view mirror, and when he looked up the boy had started to come across the road. Plogger then swerved to the shoulder, but the boy rode his bike onto the shoulder where Plogger hit him.

The decedent's father, Russell Ralston, testified that he observed his son's body four feet off the road when he arrived at the scene. The bicycle was lying eight feet off the road. According to the decedent's father, the marks made by the truck left the road completely about 125 feet east of the bicycle. The decedent's grandfather, Sam Ralston, testified the bicycle was 10 feet from the edge of the road. He measured the tracks left by Plogger's truck and testified they left the road 130 feet east of the bicycle. He also testified that Plogger had stated that he would have missed the boy if he had stayed on the road.

James Aulabaugh, a deputy sheriff, arrived at the scene around noon. He testified the boy's head was lying six inches from the edge of the pavement. The bicycle had already been moved. Aulabaugh noticed blood on the ground near the boy's head. All three ambulance attendants testified there was no blood on the ground. From the tracks made by the truck, Aulabaugh determined the left wheels had gone off the road about two feet before the spot where the body lay. Based on the location of the body, the blood, and the place where the truck left the road, Aulabaugh determined the point of impact was at the edge of the road.

Russell Ralston testified his son had permission to ride on the road, but he was told to get off on the right-hand side when traffic approached. Russell Ralston further testified that he had taught his son hand signals. The decedent's mother, Darlene Ralston, stated that the boy was not allowed to ride on the road. If he did so, he was instructed to ride on the right-hand side.

The decedent's parents and grandparents testified the boy did many chores around the house and around the family farm. He attended public school in Palmyra through the third grade. His teacher at that school described Romney as learning disabled and difficult to motivate. Due to his poor performance at the public school, his parents transferred him to a private school in Springfield. The family rented an apartment in Springfield for the new school year. Romney's teacher at the private school testified the boy was at the first grade level, but he was a hard worker. Alan Ravine, a certified school psychologist, examined Romney in July 1979. He testified Romney's intellectual potential was in the low-average range. He described Romney as learning disabled and two years delayed in development of visual and motor skills. Ravine testified that while overall skills could have been improved, the overall condition was probably inherent and permanent. He concluded Romney would have been able to work only in highly supervised occupations such as a farm laborer. Fred Gottheil, a professor of economics, testified the average boy in Macoupin County would earn $87,000 in present cash value over his lifetime after consumption.

On November 9, 1982, the plaintiff filed suit on behalf of himself, his wife, and their two daughters. Based upon this court's decision in Bullard v. Barnes (1983), 112 Ill. App.3d 384, 445 N.E.2d 485, the trial court struck from the plaintiff's complaint allegations concerning loss of society. The court later instructed the jury that the decedent's parents were entitled to a presumption of substantial pecuniary loss but that it could not award damages for loss of society. After approximately one hour of deliberation, the jury returned a verdict "for all of the defendants and against the plaintiff."

On June 29, 1984, the supreme court reversed our decision in Bullard. (Bullard v. Barnes (1984), 102 Ill.2d 505, 468 N.E.2d 1228.) The court decided there could be no presumption of the loss of earnings upon the death of a child. The court, however, held parents were entitled to a presumption of pecuniary injury due to the loss of a child's society. Damages are to be offset by child-rearing expenses. (102 Ill.2d 505, 517-18, 468 N.E.2d 1228, 1234.) On August 2, the trial court granted the plaintiff's motion for a new trial, ruling it had erred in refusing to instruct the jury that damages for loss of society were recoverable.

• 1 The defendants argue the Bullard decision should not be applied to this case because it was handed down 10 months after the jury returned its verdict. In Bullard, the supreme court directed its decision be applied "in all similar cases not finally adjudicated * * *." (102 Ill.2d 505, 517, 468 N.E.2d 1228, 1234.) The court has previously defined "final adjudication" as the termination of the last proceeding and direct appeal. (People v. Grammer (1976), 62 Ill.2d 393, 342 N.E.2d 371.) We conclude this case is not among those finally adjudicated by the date of the Bullard decision. Cf. Trotter v. Moore (1983), 113 Ill. App.3d 1011, 447 N.E.2d 1340.

• 2 The defendants assert the errors in instructing the jury on damages do not justify a new trial because the jury found in their favor on the issue of liability. Allegations of error concerning the extent of the plaintiff's damages are immaterial when it is evident that the jury found the defendants not liable. Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill.2d 591, 599, 294 N.E.2d 689, 694; Intrater v. Thomas (1977), 54 Ill. App.3d 709, 717, 369 N.E.2d 1339, 1344; Guenther v. Hawthorn Mellody, Inc. (1975), 27 Ill. App.3d 214, 219, 326 N.E.2d 533, 537.

The plaintiff argues the verdict in favor of the defendants and against him cannot be construed as a finding of no liability. He notes the court instructed the jury that he bore the burden of proving his damages. The plaintiff contends the verdict can be construed as a finding of no damage rather than as a finding of no liability.

• 3, 4 We disagree with the plaintiff's interpretation of the verdict. In Mulvey, the same verdict was returned, and the court found it evident that the jury, having found the defendant not liable, never reached the question of damages. (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill.2d 591, 599, 294 N.E.2d 689, 694.) The question of damages is not properly considered until the defendants have been found liable, and the court so instructed the jury. (Schwartz v. Alton & Southern Ry. Co. (1976), 38 Ill. App.3d 528, 531, 347 N.E.2d 829, 831.) While the defendants attempted to rebut the presumption that the decedent's parents suffered a substantial loss of future earnings, the defendants never claim the plaintiff suffered no injury at all. The evidence concerning the decedent's performance of chores around the family farm was unrefuted. The personal service of the decedent is an element of pecuniary loss (Eggimann v. Wise (1964), 56 Ill. App.2d 385, 390, 206 N.E.2d 472, 475), and the jury was instructed to consider the decedent's services in awarding damages. If the jury had found the defendants liable, it would have awarded at least nominal damages. (Lee v. National Material Corp. (1979), 74 Ill. App.3d 629, 632, 394 N.E.2d 1, 3.) Although not specifically expressed, the failure of the jury to return a verdict in favor of the plaintiff for damages recognized as recoverable in some amount leads to the inescapable conclusion that the jury found the defendants not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.