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03/08/88 Exchange National Bank of v. Air Illinois

March 8, 1988






522 N.E.2d 146, 167 Ill. App. 3d 1081, 118 Ill. Dec. 691 1988.IL.312

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


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL, P.J., and MANNING, J., concur.


The present wrongful death action is one of several arising from the crash of Air Illinois, Inc. (defendant), flight 710, bound from Springfield to Carbondale, Illinois, on October 11, 1983. *fn1 Exchange National Bank of Chicago (plaintiff), special administrator of the estate of Regina Polk Heagy (decedent), a passenger on Flight 710, was awarded $1,500,000 on behalf of decedent's husband, Thomas Heagy, following a jury trial on the issue of damages. Defendant's motion for a new trial was denied, and it appeals, contending that the trial court committed numerous errors, including: (1) erroneously admitting and excluding certain evidence; (2) permitting plaintiff's attorney to make inappropriate arguments to the jury; (3) improperly instructing the jury; and (4) refusing to submit essential instructions to the jury. For the reasons outlined below, we affirm.

The evidence at trial disclosed that decedent was born on February 14, 1950, and received a college degree from Mills College in California. She subsequently entered a master's program at the University of Chicago, where her concentration was industrial relations. During that time, she became a union organizer at Local 743 of the International Brotherhood of Teamsters in Chicago, Illinois, and in 1979, was promoted within the organization to the position of business agent, in which decedent earned an annual salary, along with bonuses, of approximately $33,895. At the time of her death, decedent was involved in a retraining program for approximately 1,800 workers left unemployed by the bankruptcy of a large Chicago mail order house. In that regard, she was appointed in 1982 by Governor Thompson to the Employment Training Council for Illinois. Decedent was en route to a meeting of that council in Carbondale when she was killed in defendant's aircraft.

Aside from being dedicated to her work, decedent had a loving relationship with her husband, Thomas Heagy, whom she married in April 1980. The two enjoyed traveling and entertaining, and other than her miscarriage in 1982, decedent was in good health and hoped to raise a family. Despite those plans, decedent intended to continue working beyond retirement age.

On appeal, defendant initially contends that the trial court erred in allowing testimony as to decedent's future earnings within Local 743 since such earnings are merely speculative and not reasonably certain to occur. Specifically, defendant challenges the testimony of Kenneth Hester, secretary-treasurer of Local 743 and member of the executive board, and Donald Peters, president of the organization, that had decedent lived, she would have become a trustee and ultimately president of Local 743, earning $69,133 and $200,000 per year, respectively.

Having reviewed the record, we conclude that there is competent evidence to establish with reasonable certainty that decedent would have become a trustee or president of the union and that her salary would have been comparable to those who currently hold such positions. Hester, whose testimony was based on extensive experience in the labor field, daily contact with decedent, and his knowledge that elderly board members and trustees would continually need to be replaced, stated unequivocally that decedent would have become a member of the executive board. Similarly, Peters was certain that decedent would advance, given the ages of existing board members and the need for female representation. In fact, Peters stated that he had intended to personally recommend decedent to fill an April 1984 vacancy in the council. He also testified that given decedent's youth, knowledge, and experience, she would have succeeded to his position as president of Local 743 within four to five years of the date of trial.

We acknowledge, as did our supreme court in Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 133 N.E.2d 288, cert. denied (1956), 352 U.S. 833, 1 L. Ed. 2d 53, 77 S. Ct. 49, that testimony involving the occurrence of future acts or events regarding one's employment is somewhat "problematical," yet "it is the best that can be produced to establish earning capacity over a period of years." As the Allendorf court further noted, "[a] jury of twelve average citizens ordinarily can be depended on to assess damages fairly, after they have heard and considered such evidence." (8 Ill. 2d at 176-77, 133 N.E.2d at 294.) It was for this reason that the jury in Allendorf could properly consider that the decedent was "enterprising and industrious and had good prospects for advancement." (8 Ill. 2d at 180, 133 N.E.2d at 296.) Similarly, in the case at bar, no error was committed by the trial court in allowing the jury to hear testimony concerning decedent's prospects for increased future earnings and the amount of those earnings.

Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920, relied on by defendant is factually distinguishable from the present case. In Christou, the court held that permitting the plaintiff's witness to testify about the average earnings of a restaurant owner constituted error where "[owning] a restaurant was merely an ambition of plaintiff's which had never materialized." (104 Ill. App. 3d at 260, 432 N.E.2d at 923.) Here, however, the record discloses that decedent not only had an ambition to advance within Local 743, but more importantly, also had the ability and opportunity. The evidence produced at trial clearly indicated that decedent would have experienced job advancement and commensurate increases in pay had she lived.

Defendant next maintains that the trial court improperly admitted Kenneth Hester's testimony regarding the future benefits decedent would have received from union pension funds. Again, defendant argues that this testimony was speculative and not based on events reasonably certain to occur. This argument also must fail in light of Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 283 N.E.2d 230, cert. denied (1973), 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 322, where our supreme court specifically held that a presently existing but contingent right to a pension is admissible to show damages for loss of future earnings, even where an employee has worked for only nine days prior to injury. Here, the evidence showed that decedent's entitlements were based on her continued employment with ...

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