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02/03/88 the Farmers State Bank and v. Lahey's Lounge

February 3, 1988

ESTATE OF KELLIE L. WHEATLEY, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

LAHEY'S LOUNGE, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

THE FARMERS STATE BANK AND TRUST COMPANY, Adm'r of the

519 N.E.2d 121, 165 Ill. App. 3d 473, 116 Ill. Dec. 531 1988.IL.128

Appeal from the Circuit Court of Morgan County; the Hon. Gordon D. Seator, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On June 28, 1985, the plaintiffs, Orville Wheatley and Christopher Wheatley, a minor, through his guardian, brought suit in the circuit court of Morgan County under the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135). Plaintiffs sought recovery for injuries sustained as a result of the death of Kellie Wheatley, plaintiffs' wife and mother, respectively. Plaintiffs sought recovery for injuries to person, property, and means of support. The three defendants, Lahey's Lounge, Leroy's Pub, and Veterans of Foreign Wars Post 1379, moved for dismissal. The trial court dismissed those counts alleging: injury to means of support; injury to property for loss of future earnings and services; and injury to property for loss of society and consortium. Plaintiffs then moved for voluntary dismissal of the remaining counts. The court granted plaintiffs' motion and plaintiffs appeal therefrom.

Plaintiffs raise three issues on appeal, all concerning damages available under the Illinois Dramshop Act, specifically: (1) whether injuries to "means of support" include loss of a housewife's domestic services; (2) whether injuries to property include loss of a housewife's domestic services; and (3) whether injuries to property include the loss of society and consortium.

On July 4, 1984, Kellie L. Wheatley was struck and killed by a van driven by Edward Frietag. Wheatley suffered massive head injuries and was pronounced dead on arrival at Passavant Hospital. Police officers, who arrived on the scene to investigate, immediately detected a strong odor of alcohol on Frietag. Frietag was given a breathalyzer test, the results indicating a blood-alcohol level of .16. Frietag then submitted to a blood test, which showed a blood-alcohol level of .18.

Frietag had been at three dramshops on the date of the incident. According to the depositions and affidavits filed with the court, Frietag, accompanied by his wife, arrived at VFW Post 1379 at approximately noon. They remained at the VFW post until 1 p.m. From this point, Frietag proceeded directly to Lahey's Lounge, where he stayed until approximately 3 p.m. Frietag was next seen at Leroy's Pub, where he remained until 5 p.m. Although there was some discrepancy as to the exact amount of alcohol consumed, Frietag admitted drinking at each tavern.

Plaintiffs filed suit against the three dramshops which allegedly caused Frietag's intoxication. The complaint, which was amended several times, in its final form, alleged 15 counts, 5 against each defendant.

The five areas upon which plaintiffs sought recovery included: (1) a survival action for the conscious pain and suffering of the deceased prior to her death; (2) an action for property damage, specifically expenses incurred for the medical treatment, ambulance service, and the funeral of the deceased; (3) an action for injuries to "means of support" based upon the loss of the deceased's future earnings and services; (4) an action for property damages due to the loss of the deceased's future earnings and services; and (5) an action for property damages for the loss of the deceased's society and consortium.

The deceased, Kellie Wheatley, was not employed outside of the home and earned no income during 1984. In 1981 and 1982, she earned $674 and $357 respectively as a part-time seamstress. It was undisputed that her personal living expenses exceeded those amounts earned. Plaintiff Orville Wheatley's income tax returns for 1983 and 1984 did not reflect any income from his wife.

There was much evidence regarding the superior quality of the deceased's skills as a homemaker, wife, and mother. Plaintiffs presented evidence of the cost of child care and other expenses to replace the domestic services previously performed by the deceased. Future child care expenses were estimated in excess of $19,000. Plaintiffs' expert, Dr. Leroy Grossman, ...


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