APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
WILLIAM J. CARTER, as Adm'r of the Estate of Tiffany Leah
Carter, Deceased, Plaintiff and
522 N.E.2d 856, 168 Ill. App. 3d 652, 119 Ill. Dec. 194 1988.IL.569
Appeal from the Circuit Court of Menard County; the Hon. Lyle E. Lipe and the Hon. Robert L. Welch, Judges, presiding.
PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
This appeal concerns the remaining issues in litigation resulting from a collision occurring in Menard County on October 9, 1981, between a train of defendant Chicago & Illinois Midland Railway Company and a van driven by decedent Beverly I. Carter (Beverly). Her daughter, decedent Tiffany Leah Carter (Tiffany), was a passenger in that van. On February 10, 1982, William J. Carter, husband and father of the respective decedents and their personal representative, filed suit in that capacity in the circuit court of Menard County against CIM seeking recovery for their allegedly wrongful deaths which resulted from the collision. A jury trial was held, and the jury returned verdicts against CIM and in favor of Beverly's estate for $120,000 (reduced to $12,000 because Beverly's negligence was found to be 90%) and $5,000 for Tiffany's estate. Appropriate judgments were entered on those verdicts.
The court denied a post-trial motion made on behalf of Beverly's estate and made a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) making the judgment on that portion of the case appealable. On appeal, we affirmed (Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App. 3d 431, 474 N.E.2d 458), and the supreme court denied leave to appeal. Pursuant to a post-trial motion by Tiffany's estate the circuit court granted a new trial to that estate on the question of damages only. The propriety of that order is before us on this appeal.
After the grant of the new trial, CIM filed a counterclaim against Beverly's estate seeking contribution for any damages assessed at the new trial in favor of Tiffany's estate and against CIM. On the motion of Tiffany's estate, the counterclaim was severed from the complaint of Tiffany's estate for the purposes of the retrial on the issue of damages. After retrial, a judgment was entered on a verdict for $200,000 in favor of Tiffany's estate. On February 14, 1985, a timely post-trial motion by defendant was denied. Subsequently, at CIM's request, a finding was made pursuant to Supreme Court Rule 304(a) on March 28, 1985. Then, on April 26, 1985, which was less than 30 days from the Rule 304(a) finding but more than 30 days from the court's denial of the post-trial motion on February 14, 1985, defendant filed a notice of appeal.
Meanwhile, on March 28, 1985, the circuit court dismissed CIM's counterclaim as being untimely filed under the holding in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939. On appeal from the order of dismissal, this court affirmed (Carter v. Chicago & Illinois Midland Ry. Co. (1986), 140 Ill. App. 3d 25, 487 N.E.2d 1267) and leave to appeal was denied by the supreme court. Subsequently, we considered the appeal from the $200,000 judgment. We concluded the decision of the supreme court in Northtown Warehouse & Transportation Co. v. Transamerica Insurance Co. (1986), 111 Ill. 2d 532, 490 N.E.2d 1268, required us to hold that the order of February 14, 1985, denying CIM's post-trial motion was final as to all claims and parties in the case, because the severance of the counterclaim had made it a separate action. If that Conclusion had been correct, the notice of appeal filed on April 26, 1985, would have been untimely by the terms of Supreme Court Rule 303 (107 Ill. 2d R. 303), and we would not have had jurisdiction. Thus, based on that Conclusion, we dismissed the appeal without considering other issues. Carter v. Chicago & Illinois Midland Ry. Co. (1986), 144 Ill. App. 3d 437, 494 N.E.2d 892.
The supreme court granted leave to appeal from our dismissal of the appeal in the above case. In an opinion which modified the views expressed in Northtown, the supreme court concluded the separation of the claim of Tiffany's estate from CIM's counterclaim against the estate of Beverly Carter for retrial was not a sufficient severance to completely separate the actions. Accordingly, that court reversed our decision of dismissal holding that the time for filing notice of appeal did not begin until the entry of the Rule 304(a) finding on March 28, 1985, and the filing of the notice of appeal on April 26, 1985, was timely. The cause was remanded to this court to consider the other issues raised by CIM on its appeal from the $200,000 judgment. Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill. 2d 296, 518 N.E.2d 1031.
We now consider the other contentions made by CIM. They are: (1) the circuit court erred in granting the new trial on damages only; (2) the circuit court erred in permitting the jury to award damages for the loss of society of a sibling; (3) the damage award was excessive and against the manifest weight of the evidence; (4) the phrase "pecuniary injuries" in the statute permitting recovery for wrongful death is so vague as to deprive defendant of due process; and (5) the circuit court erred in certain other rulings. Our decision on the first two issues is dispositive. We hold the trial court did not err in awarding a new trial on damages only but the court did ...