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01/13/87 Maureen Von Seggren, v. B. D. Smith

January 13, 1987

MAUREEN VON SEGGREN, PLAINTIFF-APPELLEE

v.

B. D. SMITH, INDIV. AND D/B/A WIRTZ-ROCHE-SMITH FUNERAL HOME, DEFENDANT-APPELLANT AND COUNTERDEFENDANT (NANCY

SPROWLS ET AL., PLAINTIFFS; ROBERT TROOST, INDI

v.

AND D/B/A RIVERHILL MEMORIAL PARK, DEFENDANT AND COUNTERPLAINTIFF)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

503 N.E.2d 573, 151 Ill. App. 3d 813, 104 Ill. Dec. 858 1987.IL.21

Appeal from the Circuit Court of De Kalb County; the Hon. John A. Leifheit, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. NASH and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, B. D. Smith, individually and d/b/a Wirtz-Roche-Smith Funeral Home, appeals from a judgment of the circuit court of De Kalb County following a jury trial awarding plaintiff, Maureen Von Seggren, $50,000 damages for breach of contract. The case arose out of the handling of the cremains (cremated remains) of plaintiff's mother by defendant, with plaintiff contending, and defendant denying, that defendant returned to plaintiff's family the cremains of someone (Edith Holderness Willey) other than her mother (Earlene Kempson). Defendant raises two issues on appeal, contending (1) that the trial court erred in admitting into evidence testimony about defendant's handling of the remains of someone other than plaintiff's mother and (2) that the jury's verdict was excessive. We affirm.

Defendant first argues that the trial court erroneously permitted testimony from four witnesses -- Warren Willey, Edith Willey (Warren's wife), Peter Wolters, and John Hammes -- concerning defendant's handling of the cremains of Mr. Willey's grandfather and grandmother (Edith Holderness Willey). Defendant maintains that "[t]his testimony was totally irrelevant and immaterial to the issue presented, and its injection into the lawsuit highly prejudicial." The issue raised was not properly preserved and so has been waived.

The testimony of the Willeys was about their dealings with defendant regarding the Disposition of the remains of Mr. Willey's grandparents. Wolters and Hammes were associated with the Oakwood Cemetery, and their testimony concerned whether the cemetery association had been paid a fee for burying the cremains of Mr. Willey's grandparents, whether Hammes as cemetery sexton had buried those cremains, and whether the cemetery's records showed a burial for the Willeys.

The testimony of Wolters and Hammes was not objected to before, during, or after trial. Defendant's claim that the testimony of these two witnesses should not have been admitted has accordingly been waived. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01, 475 N.E.2d 872, 879.

Insofar as the issue concerns the testimony of Warren and Edith Willey, it is necessary to determine what was raised in the trial court by way of contemporaneous objection and post-trial motion. To be preserved, the issue raised must have been specifically raised both by timely objection at trial and in defendant's post-trial motion. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 424 N.E.2d 1279, 1029-30; Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 969, 973, 424 N.E.2d 1279, 1284, 1286-87.

The relevant allegations of defendant's post-trial motion were:

"8. The Court erred in refusing to grant defendant's Motion In Limine which is in words and figures as follows;

. . . that the parties be instructed not to inform the jury at any time during trial any of the following:

1. The Willey family's dissatisfaction with Mr. B. D. Smith's handling of the cremains ...


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