American Nat. Bank & Trust Co. of Chicago v. Thompson

• Decision Date: 29 June 1987
• Docket Number: No. 85-3232,85-3232
• Parties: , 110 Ill.Dec. 886 AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, a corporation, Special Administrator of the Estate of Ruth A. Alsup, Deceased; American National Bank & Trust Company, Guardian of the Estate of Amy Renee Alsup, a minor; Daniel C. Alsup, Guardian of the Person of Amy Renee Alsup, a minor, Plaintiffs-Appellants, v. Larry G. THOMPSON; Consolidated Freightways Corporation of Delaware, a foreign corporation; and Nancy S. Nielsen, now known as Nancy S. Miller, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1206

511 N.E.2d 1206

158 Ill.App.3d 478, 110 Ill.Dec. 886

AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, a

corporation, Special Administrator of the Estate of Ruth A.

Alsup, Deceased; American National Bank & Trust Company,

Guardian of the Estate of Amy Renee Alsup, a minor; Daniel

C. Alsup, Guardian of the Person of Amy Renee Alsup, a minor, Plaintiffs-Appellants, v. Larry G. THOMPSON; Consolidated Freightways Corporation of

Delaware, a foreign corporation; and Nancy S.

Nielsen, now known as Nancy S. Miller,

Defendants-Appellees.

No. 85-3232.

Appellate Court of Illinois,

First District, First Division.

June 29, 1987.

Rehearing Denied Aug. 18, 1987.

Rosin, Rosin & Associates, Ltd., Chicago, for plaintiffs-appellants; (Joseph A. Rosin, of counsel).

Williams & Montgomery, Ltd., Chicago for defendants-appellees (Barry L. Kroll, James K. Horstman, Jeffrey H. Lipe, C. Barry Montgomery, of counsel).

Presiding Justice QUINLAN delivered the opinion of the court:

Ruth Alsup died when an automobile in which she was riding as a passenger collided with a semi truck on Route 36 in Macon County, Illinois. The administrator of the decedent's estate, American National Bank and Trust Co., brought this wrongful death action against the owner of the truck (Consolidated Freightways Corp. of Delaware), the driver of the truck (Larry Thompson), and the driver of the automobile (Nancy Nielsen, n/k/a Nancy Miller). A jury found all defendants liable and determined that the pecuniary loss sustained by the decedent's surviving daughter was $150,000; thereafter the court entered judgment in that amount on the wrongful death action. A separate action for personal injury damages maintained on behalf of Amy Alsup, decedent's daughter, who was a rear seat passenger in the Nielsen car, resulted in a $5,000 judgment in her favor. No error is asserted regarding this award. Following the denial of plaintiff's post-trial motion in the wrongful death action, the plaintiff filed this appeal requesting a new trial on damages.

The issues presented in this appeal are: (1) Whether the testimony of defendant's expert concerning the present cash value of decedent's future income should have been stricken in its entirety; (2) Whether the exhibits with which defendant's expert used to explain present cash value should have been excluded from evidence; (3) Whether defense counsel committed prejudicial error by presenting the Biblical parable of the Good Samaritan in his closing argument; and (4) Whether the monetary award returned by the jury in the amount of $150,000 for the wrongful death of Ruth Alsup was so inadequate that a new trial was required on the issue of damages.

The record reveals the following pertinent facts upon which the jury's verdict is based. On the afternoon of February 10, 1975, the decedent, Ruth Alsup, was riding as a front seat passenger in a car driven by Nancy Nielsen, n/k/a Nancy Miller. Amy, Ruth's daughter, was riding in the back seat. The Nielsen vehicle was traveling eastbound on Route 36. Some distance ahead of the Nielsen vehicle a semi truck driven by Larry Thompson was also traveling eastbound on Route 36. Shortly after the Nielsen car passed over the crest of the hill on Route 36, it collided with the back end of the truck, and Ruth Alsup was killed and Amy Alsup was injured.

At trial, Larry Thompson, the driver of the truck, testified that when he reached the top of the rise just west of the accident scene, he saw a car one-half mile ahead of him slow down and pull off the roadway. At that time, he took his foot off the accelerator and activated his four-way lights. As he approached the stalled car, he applied his brakes and came to a stop on the roadway. As Thompson slowed to a stop, he automatically checked his rearview mirror, but saw no traffic close enough behind him to warrant his attention. From the location where he stopped, Thompson had an unobstructed view of about one-half mile behind him.

Thompson testified that his reason for stopping was to help the woman in the stalled vehicle. He could not call for help, he said, because his CB radio had not been operating properly and was disconnected. He also stated that he could not pull his truck-trailer off the roadway because he would have become mired in the muddy shoulder and probably would have, in his opinion, tipped over. After the truck had come to a full stop, Thompson set the emergency brake and again looked into his rearview mirror. Prior to the impact, he saw the Nielsen vehicle 10 or 20 feet behind the truck. He had not seen the Nielsen vehicle at any earlier point. According to Thompson's recollection, the interval between the time that Thompson stopped the truck and the time that Nielsen drove into the back of the truck was 5 or 10 seconds.

Elizabeth Digman, the driver whom Thompson had stopped to help, testified that her car's motor died and she skidded or steered into the ditch along the eastbound lane of Route 36. She stated that after the truck driver stopped to help her, approximately one-half minute elapsed before the Nielsen car collided with the back end of the truck. Mrs. Digman stated that at the time of the incident she was six or seven months pregnant.

Nancy Miller, the driver of the vehicle in which plaintiff's decedent was a passenger, testified that she had no recollection of the February 10, 1975 incident. There was no other testimony relating to the accident itself presented at the trial.

Plaintiff's first contention on appeal is that the testimony of defendant's expert, Professor Edelstein, should have been stricken in its entirety for lack of relevance and lack of foundation. Specifically, plaintiff asserts that Professor Edelstein incorrectly defined and illustrated the term "present cash value." In response, defendant argues that the plaintiff's assertion results from plaintiff's fundamental confusion concerning what might be called an "economic" definition of present cash value as used by plaintiff's economist in his testimony and the "legal" definition utilized by defendant's mathematician, which was employed by the trial court in instructing the jury. The defendant asserts that this legal definition used by Professor Edelstein in his testimony is the same as that set forth in Illinois Pattern Jury Instruction, Civil, No. 34.05 (2d ed. 1971) (IPI Civil), and is, thus, the only appropriate and correct definition of the term "present cash value" for purposes of determining proper damage awards in trial proceedings. We agree with the defendant's argument.

It is well established that damages for future losses must be reduced to their "present cash value" (see Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill.2d 164, 133 N.E.2d 288; McCray v. Illinois Central R.R. Co. (1957), 12 Ill.App.2d 425, 139 N.E.2d 817; 22 Am.Jur.2d Damages § 26 (1965)), which has been defined as "the sum of money needed now, which, together with what that sum will earn in the future, will equal the amounts of the pecuniary benefits at the times in the future when they would have been received." (IPI Civil, No. 34.05; LeMaster v. Chicago Rock Island & Pacific R.R. (1976), 35 Ill.App.3d 1001, 1028, 343 N.E.2d 65; see also J. Francis, Investments: Analysis & Management 191 (3d ed. 1972); C. Goetz, Law & Economics 158-60 (1984).) The impetus for discounting future losses is to avoid giving the plaintiff a windfall, since money received today is invariably worth more than the same dollar amount received in the future. (See Cheasapeake & Ohio Ry. v. Kelly (1916), 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117; O'Shea v. Riverway Towing Co. (7th Cir.1982), 677 F.2d 1194, see also J. Francis, Investments: Analysis & Management 193 (3rd ed. 1972).) For example, one dollar received today can be invested in a 5% savings account and one dollar and five cents can be withdrawn in one year. Simply stated, the concept of present cash value accounts for the "time value" of money. J. Francis, Investments: Analysis & Management 193 (3d ed. 1972).

In his testimony, the plaintiff's economist, Joel Mokyr, calculated the present cash value of the pecuniary loss sustained by the decedent's child. In calculating the present cash value of the plaintiff's future lost earnings, Mr. Mokyr used a formula which recognized not only the interest rates of invested money, but also included projected inflation rates and projected growth in real earnings as well. Using an average interest rate of 10.4% (based on rates for three month treasury bills) and a projected interest rate of 5% (based on the inflation experience of the preceding five years), Mokyr calculated an initial discount rate of 5%, which he adjusted by a 2% projected rate of growth in real earnings to determine the present value of plaintiff's future lost earnings. Mr. Mokyr testified that from an "economic point of view" the definition of present cash value includes the rate of inflation and growth of real earnings, as well as interest rates. He also indicated that, from an "economic point of view," present cash value could not be determined without consideration of all three factors.

However, on cross-examination, Mr. Mokyr acknowledged that the definition of "present cash value" set forth in IPI Civil No. 34.05 was not the definition he was using. Mr. Mokyr stated that, to the contrary, the definition employed in his analysis was purely "an economic definition."

Thereafter, during the presentation of defendant's case in chief, Professor Warren Edelstein, a professor of mathematics, was called to explain the concept of present cash value to the jury. Professor Edelstein defined present cash value stating:

"Present cash value is the amount of money needed at the present to be invested to produce a prescribed amount of money at a time in the future * * * at a given rate of interest."

Professor Edelstein acknowledged that this definition did not account for the "purchasing power" of...