Jones v. Karraker

• Decision Date: 21 October 1983
• Docket Number: No. 57598,57598
• Citation: 75 Ill.Dec. 233,457 N.E.2d 23,98 Ill.2d 487
• Parties: , 75 Ill.Dec. 233 Terri L. JONES, Adm'r, Appellee, v. Richard W. KARRAKER, Appellant.
• Court: Illinois Supreme Court

Page 23

457 N.E.2d 23

98 Ill.2d 487, 75 Ill.Dec. 233

Terri L. JONES, Adm'r, Appellee, v. Richard W. KARRAKER, Appellant.

No. 57598.

Supreme Court of Illinois.

Oct. 21, 1983.

Rehearing Denied Dec. 2, 1983.

James E. Whitmire, Jr., McGehee, Boling & Whitmire, Ltd., Silvis, Isador I. Katz, Stuart R. Lefstein, Robert T. Park, Katz, McAndrews, Durkee, Balch & Lefstein, P.C., Rock Island, for appellant Richard W. Karraker.

Stephen S. Buckley, Santa Ana, Cal., Michael J. Warner, Braud, Warner, Neppl & Westensee, Ltd., Rock Island, for appellee Terri L. Jones.

George M. Elsener, Robert J. Glenn and Robert J. Drummond, Chicago, for the Illinois Trial Lawyers Ass'n.

GOLDENHERSH, Justice:

Defendant, Richard W. Karraker, a physician, appealed from the judgment entered in the circuit court of Rock Island County upon a jury verdict returned in favor of plaintiff, Terri L. Jones, administrator of the estate of Brandy Lee Jones. The appellate court affirmed (109 Ill.App.3d 363, 64 Ill.Dec. 868, 440 N.E.2d 420), and we allowed defendant's petition for leave to appeal (87 Ill.2d R. 315).

The complaint alleged that Brandy Lee Jones, a viable fetus, died en ventre sa mere as the result of defendant's negligence. The facts are adequately set forth in the appellate court opinion and will be stated here only to the extent necessary to discuss the issues.

Defendant contends that the verdict and judgment in the amount of $125,000 are excessive. He argues that the appellate court erred in affirming the judgment because "no Illinois case has ever previously held that the presumption [of some substantial pecuniary loss], by itself and without more, is sufficient to support a substantial verdict * * *." Defendant argues that, prior to this case, every reviewing court which has affirmed an award for a minor's death, in addition to noting the presumption of substantial pecuniary loss, has cited evidence supporting the jury verdict. Defendant asserts that the appellate court erred in concluding that "no evidence whatsoever need be required to support a verdict for substantial pecuniary loss."

There was no evidence offered of the baby's characteristics, and as the appellate court said, "the record shows that the only evidence before the jury on the question of damages was the fact that the fetus was viable and that, absent defendant's malpractice, the evidence indicated that the plaintiff would have had a normal, healthy baby." (109 Ill.App.3d 363, 370, 64 Ill.Dec. 868, 440 N.E.2d 420.) Defendant argues that there must be evidence, in addition to the presumption, to sustain a verdict for the benefit of the lineal next of kin. We do not agree. In City of Chicago v. Major (1857), 18 Ill. 349, the jury awarded damages for the death of a four-year-old boy. Concerning the assessment of damages the jurors were instructed that they "must found their estimate upon such facts in proof as tend to show the pecuniary extent of the loss sustained; but to enable the jury to arrive at such an estimate, it is not necessary that any witness should have expressed an opinion as to the amount of such pecuniary loss, but the jury may themselves make such an estimate from the facts proved, taking into consideration the age of the deceased, and such other evidence as may afford them the means of making the estimate." (18 Ill. 349, 354.) The only evidence was the age of the child and his relationship to the plaintiff. A judgment awarding damages for the death of the child was affirmed.

In City of Chicago v. Scholten (1874), 75 Ill. 468, in rejecting an attack on an instruction, the court said:

"One reason suggested why this instruction should have been refused is, that it is not based on any evidence in the case. This is a misapprehension of the facts. Where there is any evidence, however slight, it is sufficient to sustain an instruction upon the hypothetical case it tends to prove. As much evidence is contained in this record as was given in The City of Chicago v. Major, 18 Ill. 349, where a verdict for $800 was sustained, for causing the death of a child four years old. The child was too young to have rendered any services to its parents, or next of kin, and all that was proven was the age and relationship. It was said, the jury was authorized to estimate the pecuniary damages, from the facts proven, in connection with their own knowledge and experience. The doctrine of this case has been adhered to in all subsequent cases arising under this statute. C. & R.I.R.R. Co. v. Morris, 26 Ill. 400; C. & A.R.R. Co. v. Shannon, 43 [Ill. 336] ib. 346.

In the case at bar, proof was made of the age of the deceased, the names of the next of kin, and that his parents were laboring people.

These facts alone were sufficient on which to base an instruction, embodying the principle contained in this one. It was not indispensable there should be proof of actual services of pecuniary value rendered to the next of kin, nor that any witness should express an opinion as to the value of such services, before a recovery could be had." 75 Ill. 468, 471.

It is true that in many opinions involving verdicts for the wrongful death of minor children the evidence of the child's health, abilities, disposition and other accomplishments has been discussed, but in none of these opinions was it held that such evidence is required to sustain a verdict.

That the presumption is not conclusive, and the propriety of entrusting to a jury the task of assessing damages in the light of the presumption and "in connection with their own knowledge and experience" are demonstrated in Flynn v. Vancil (1968), 41 Ill.2d 236, 242 N.E.2d 237. In Flynn a jury returned a verdict finding liability but "no damages" for the death of a two-week-old child suffering from an incurable congenital physical defect. "Knowledge and experience" teach us that the evidence which defendant contends was essential is of questionable value in assessing damages for the death of a baby.

Defendant contends that the question of damages where the only evidence presented was that the fetus, but for defendant's negligence, would have been healthy was a question of law. Defendant argues that trial lawyers and litigants will be unable to estimate the value of a particular case for purposes of settlement, and the failure of this court to establish a specific dollar amount for damages in this type of case will diminish reasonable settlement possibilities and encourage litigation. Defendant suggests that this court should hold that a verdict for the death of a viable fetus may not exceed $20,000.

It is, perhaps, true that this question could be treated as one of law. Indeed, in the past the General Assembly has limited the amount of damages in wrongful death cases (see Hall v. Gillins (1958), 13 Ill.2d 26, 29-30, 147 N.E.2d 352, citing Ill.Rev.Stat.1957, ch. 70, pars. 1, 2), but has removed any such limitation. In Flynn v. Vancil this court, in effect, rejected the contention that there be a minimum verdict. In our opinion placing a limit on the maximum or minimum amount of an award in a case such as this is a legislative prerogative. We decline to do so.

Finally, defendant asks this court to either award a new trial or enter a remittitur in the amount of $105,000 or another appropriate amount. The amount of a jury's verdict will not be disturbed unless it is so large as to indicate passion or prejudice. (Lynch v. Board of Education (1980), 82 Ill.2d 415, 437, 45 Ill.Dec. 96, 412 N.E.2d 447.) We find apposite here the concluding comments of the opinion in Lau v. West Towns Bus Co. (1959), 16 Ill.2d 442, 158 N.E.2d 63:

"We are not unmindful of our obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. This we have done, and we conclude from the evidence that although the verdict may well be in excess of the amount which the judges of this court would have allowed if they had heard the evidence and made the original determination, yet we do not believe that it is so excessive as to show passion or prejudice.

We therefore conclude that the verdict and judgment below are correct and the judgment is affirmed." 16 Ill.2d 442, 453, 158 N.E.2d 63.

Defendant contends next that the circuit court improperly excluded the evidence deposition of Dr. Norman Powell. When Dr. Powell's evidence deposition was taken prior to trial, counsel for plaintiff made continuing objections on the basis that Dr. Powell, in stating his conclusions, relied upon medical records not admitted into evidence and objected to the medical records on the ground that they were offered without sufficient foundation and were hearsay statements not in evidence.

At trial, when Dr. Powell's evidence deposition was offered in evidence, plaintiff's counsel, citing Wilson v. Clark (1981), 84 Ill.2d 186, 49 Ill.Dec. 308, 417 N.E.2d 1322, argued that it was inadmissible on the ground that the expert witness based his opinion on records not in evidence. The following colloquy occurred:

"MR. WARNER [plaintiff's counsel]: Your Honor, I do think it may be time consuming; but I think it is possible for Mr. Katz to produce the necessary people to get these documents admitted in the record.

THE COURT: If they are then admitted in the record, the deposition could be retendered to the court.

MR. KATZ [defense counsel]: That isn't what they are arguing, Judge.

MR. WARNER: That isn't correct. The person who is eliciting his opinion is basing the opinion upon records, which is improper. It has to be done based upon an assumed set of facts, not any records in any way, unless he is the treating physician."

After the trial court reviewed the case of Wilson v. Clark, it concluded that the evidence deposition could not be "admitted at this time." The court further concluded that the question posed by defense counsel in the evidence deposition was based on more than mere hypothetical facts,...