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01/11/88 Jasbir K. Singh, Adm'r of v. Air Illinois

January 11, 1988

JASBIR K. SINGH, ADM'R OF THE ESTATE OF DALBIR SINGH, DECEASED, PLAINTIFF-APPELLEE

v.

AIR ILLINOIS, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 852, 165 Ill. App. 3d 923, 117 Ill. Dec. 501 1988.IL.12

Appeal from the Circuit Court of Cook County; the Hon. Jacques F. Heilingoetter, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Following a jury trial, Jasbir Singh (plaintiff), the administrator of the estate of her brother Dalbir Singh (decedent), was awarded $400,000 in a wrongful death action brought against Air Illinois, Inc. (defendant). Decedent was a passenger on defendant's flight 710 when it crashed on October 11, 1983, while en route from Springfield to Carbondale, Illinois. Defendant's motion for a new trial was denied, and it appeals, contending that the trial court committed numerous errors, including: erroneously admitting and excluding certain evidence; improperly instructing the jury; refusing to give the jury essential instructions; and allowing the jury to return a verdict based on inappropriate deliberations. It is significant to note that on appeal, the question is not whether the trial was error free, but whether error occurred which prejudiced the appellant or unduly affected the outcome. (Ruffiner v. Material Service Corp. (1985), 134 Ill. App. 3d 747, 480 N.E.2d 1157.) Given that the deficiencies asserted by defendant do not rise to the level of reversible error, we affirm.

The evidence at trial disclosed that decedent was born in India, had six brothers and sisters, and emigrated with his family to Toronto, Canada, at age 15. He attended various schools in India and Toronto, and ultimately graduated from the University of Illinois in 1982. In late 1982, decedent and his brother formed a business which involved the selling of computer office management systems to physicians. Decedent, age 26, was on his way to deliver a system when he was killed.

Aside from being industrious, decedent was the youngest member of the board of trustees at his temple in Palatine, Illinois, was active in his community, and visited his parents and other family members often. Because decedent was responsible for his parents under religious custom, he purchased a home in Barrington, Illinois, where the three planned to live along with decedent's future wife. Decedent was to be married on October 26, 1983, just two weeks after his death.

On appeal, defendant initially argues that the trial court erred when it improperly allowed the jury to consider certain irrelevant and prejudicial testimony. Specifically, defendant objects to the testimony that: (1) decedent was the guardian of plaintiff's children; (2) decedent had offered to donate a kidney to his father; (3) Sikh religious custom required a child to support his parents; and (4) decedent was an active member of his church.

Relevancy is established where the offered evidence tends to prove a fact in controversy or renders a matter at issue more or less probable. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628.) In determining relevancy, the court must consider the evidence in light of the factual issues raised in the case. (Svenson 74 Ill. App. 3d 75, 392 N.E.2d 628.) Here, the factual issues raised involved the value of the loss of support and society suffered by decedent's parents and siblings. In this regard, the challenged testimony was relevant, as it tended to show the loving and caring relationship decedent had with family members as well as his potential to financially contribute to their welfare.

Defendant next contends that the trial court erred when it admitted the hearsay testimony of Lance Laterza, vice-president of Articulate Publications, Inc. Laterza testified that he had a business relationship with decedent, and as a result, co-authored a dedication in a software manual which stated, "To Dalbir Singh, a genius of practice management and a dear friend we all miss very much." We initially point out that while defendant objected to Laterza's testimony based on its probative value, no objection was made on hearsay grounds. Given that defendant failed to make an appropriate objection to this testimony, the issue is waived for purposes of review. (Gibson v. State Farm Mutual Automobile Insurance Co. (1984), 125 Ill. App. 3d 142, 465 N.E.2d 689.) In any event, Laterza's testimony did not constitute hearsay, since he was the declarant and was present in court to testify and be cross-examined as to the declaration. (Pyse v. Byrd (1983), 115 Ill. App. 3d 1003, 450 N.E.2d 1374.) Moreover, the testimony regarding Laterza's telephone conversation with decedent, also challenged by defendant on appeal, was not hearsay, as only the general subject matter of that conversation was elicited.

Defendant also raises three objections to the testimony of plaintiff's expert economist, Dr. Charles Linke. First, defendant contends that Dr. Linke's testimony violated the 60-day requirement of Supreme Court Rule 220 (107 Ill. 2d R. 220), because he updated his 1983 report on the present value calculation of decedent's earning capacity just prior to trial. Rule 220(b), however, merely allows a trial court to establish a disclosure schedule if an expert witness is not otherwise disclosed. Here, Dr. Linke was otherwise disclosed, and, therefore, Rule 220(b) is not applicable. Rather Rule 220(c), which relates to discovery of an expert's opinion, states:

"(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party ...


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