Rusher v. Smith

• Decision Date: 27 March 1979
• Docket Number: No. 78-280,78-280
• Citation: 70 Ill.App.3d 889,388 N.E.2d 906,26 Ill.Dec. 905
• Parties: , 26 Ill.Dec. 905 James W. RUSHER, as Administrator of the Estate of Donald J. Rusher, Deceased, Plaintiff-Appellee, v. Stephen R. SMITH, Earl D. Christian, and Grace Ham, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 906

388 N.E.2d 906

70 Ill.App.3d 889, 26 Ill.Dec. 905

James W. RUSHER, as Administrator of the Estate of Donald J Rusher, Deceased, Plaintiff-Appellee, v. Stephen R. SMITH, Earl D. Christian, and Grace Ham Defendants-Appellants.

No. 78-280.

Appellate Court of Illinois, Fifth District.

March 27, 1979.

John E. Gambill, Rantoul, for defendant-appellant, cross-appellee, Stephen Smith.

Elmer Jenkins, William G. Eovaldi, Benton, for plaintiff-appellee, cross-appellant.

KARNS, Justice:

This action was initiated in the Circuit Court of Franklin County by James W. Rusher as administrator of the estate of Donald J. Rusher, deceased, against Stephen R. Smith, Earl D. Christian and Grace Ham to recover damages for the wrongful death of Donald J. Rusher. The jury returned a verdict against the three defendants in the sum of $39,000 upon which judgment was entered. Only defendant Stephen R. Smith appeals from the judgment in favor of plaintiff.

In the complaint, plaintiff alleges that decedent's parents, James W. Rusher and Ruth E. Rusher, were deprived of the means of support and other valuable services of their son when he was willfully and maliciously shot and killed by defendants, and are therefore entitled to actual and punitive damages. Plaintiff further alleges that the surviving wife, Dianna Rusher, who participated in the acts leading to the death of her husband, is barred from receiving any damages.

Defendant Smith filed a motion to dismiss asserting that there can be no recovery for punitive damages in a wrongful death action and that the complaint failed to contain an allegation that the decedent was free from negligence or exercising due care at the time of his death. The trial court denied the motion to dismiss but struck the allegation of punitive damages from the complaint.

Thereafter, defendant Smith filed a motion for summary judgment which was denied. In arguing this motion, counsel for Smith claimed that the distribution under the Wrongful Death Act was to be made according to the laws of intestate succession; that, therefore, the surviving spouse was the only person entitled to any recovery in this action; and that if she were unable to recover because of her complicity in the death of her husband, then no one was entitled to receive the benefits under the Act.

At trial, Grace Ham, Earl D. Christian and Earl's wife, Lori Vailes Christian, testified that they saw defendant Smith shoot Donald J. Rusher with a shotgun in the churchyard of the Eakin Grove Freewill Baptist Church. Defendant Smith did not testify in his defense.

John Andrews, an investigator for the Franklin County Sheriff's Department, took various photographs of the deceased at the scene of the shooting. Plaintiff sought to introduce into evidence two of these photographs over the objection of defendant Smith. The trial court sustained the objection to one of the pictures because of its prejudicial content but admitted the other photograph.

During the testimony of Pam Rusher, the decedent's sister, plaintiff introduced into evidence a photograph of the deceased in the living room of his parents' home on Christmas Eve in 1972, which was approximately four years prior to the death of decedent. Defendant Smith's objections to the photograph were overruled.

Various testimony was heard concerning the pecuniary loss of the parents as a result of the death of their son who died at the age of 21. After completing approximately one year of high school, decedent worked three months for a drive-in restaurant doing menial tasks. Of the twenty-five dollar a week salary, only four to five dollars were given to the parents. Decedent then joined the Army in September of 1972, but was discharged in January of 1974 with a less than honorable discharge. After he left the service, decedent went to work for approximately three months training bird dogs in Canada. When he returned, he gave his father $30. Thereafter, decedent worked about a month helping to tear down the old Benton High School.

In 1974, he married Dianna Brown, but only lived with her for 11/2 years. After the separation in December of 1975, he returned to the home of his parents. Shortly thereafter, decedent volunteered to go to the Chester Mental Health Institute for drug rehabilitation and stayed there until August of 1976. He then continued to live with his parents until his death in November of 1976.

During the periods that decedent lived at home since 1972, he helped in the remodeling of the house, did various household chores, and worked in the yard. His health appeared to be good except during the time of his marriage.

In 1975 and 1976, decedent had numerous experiences with the law. He pleaded guilty to a burglary one month prior to his death and had been charged on various occasions with drug violations. At the time of his death, he was on probation for the commission of the burglary.

Overall, decedent spent 90% Of his income on himself. He only contributed a maximum of 50 to 60 dollars a year to his parents.

At the instruction conference, defendant Smith objected to plaintiff's Instruction No. 10 which contained the statutory definition of murder:

"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

'A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1) He either intends to kill or do great bodily harm to that individual, or knows that such acts will cause death to that individual; or,

(2) He knows that such acts create strong probability of death or great bodily harm to that individual; or,

(3) He is attempting to commit a forcible felony other than voluntary manslaughter.'

If you decide that the defendants, either jointly or severally, violated the statute on the occasion in question, then you must consider that fact together with all the other facts and circumstances in evidence in determining whether or not the defendants either jointly or severally, are guilty of wilfully and maliciously, with force and arms, with a shotgun shooting Donald J. Rusher in the face, instantly causing his death."

Defendant Smith claimed that this was an inappropriate instruction to give in a civil case.

On appeal, defendant Smith first argues that the complaint is defective because Illinois law requires a plaintiff to allege due care and freedom from contributory negligence in a wrongful death action. Defendant fails to distinguish between a wrongful death suit based on simple or an aggravated form of negligence and one based on the intentional tort of battery. Although in a negligence action a plaintiff must plead and prove his exercise of due care, in an action founded on an intentional tort, freedom from contributory negligence is not a defense. As stated by Professor Prosser:

"The ordinary contributory negligence of the plaintiff is to be set over against the ordinary negligence of the defendant, to bar the action. But where the defendant's conduct is actually intended to inflict harm upon the plaintiff, there is a difference, not merely in degree but in the kind of fault; and the defense never has been extended to such intentional torts. Thus it is no defense to assault and battery." Prosser, Torts § 65 at 426 (4th ed. 1971).

Defendant Smith next asserts that the parents cannot recover for the wrongful death of their son because the surviving spouse is the only person entitled to maintain such an action by reason of the rules of descent and distribution. We first note that the law, requiring the distribution of a judgment for wrongful death to follow the statute of descent, was modified over twenty years ago (Ill.Rev.Stat.1957, ch. 70, par. 2). The Statute now provides that any recovery for wrongful death is to be distributed based upon the actual dependency of "the surviving spouse And next of kin of such deceased person in the proportion, as determined by the court * * *." (emphasis added) (Ill.Rev.Stat.1975, ch. 70, par. 2). (Griffy v. Tolliver, 64 Ill.App.3d 504, 21 Ill.Dec. 428, 381 N.E.2d 755 (5th Dist. 1978); Rust v. Holland, 15 Ill.App.2d 369, 146 N.E.2d 82 (2d Dist. 1957).) The statutory language is clear that parents, as next of kin, (See Jung v. Schafer, 77 Ill.App.2d 391, 222 N.E.2d 707 (2d Dist. 1966) and a surviving spouse can recover in the same wrongful death action to the extent of their dependency on the deceased. Consequently, when the surviving spouse is precluded from joining in the recovery by virtue of her participation in the commission of the intentional tort, the parents are entitled to be the sole beneficiaries.

At trial, defendant Smith called a witness, Donald Ross Jones, who testified that Grace Ham had admitted shortly after the incident that she had shot and killed Donald J. Rusher. Defendant Smith argued that this testimony constituted an admission and should be admitted as substantive evidence in Smith's defense. The trial court permitted the statement to be used as impeachment of the testimony of Grace Ham, who denied making this statement, and properly excluded the use of this testimony as substantive evidence. If offered by plaint...