Rust v. Holland

• Decision Date: 25 November 1957
• Docket Number: Gen. No. 11090
• Citation: 15 Ill.App.2d 369,146 N.E.2d 82
• Parties: , 67 A.L.R.2d 739 LaVera RUST, Administratrix of the Estate of Gerald Glen James Rust, deceased; Roberta Sutter, a minor, by Goldie Sutter, her mother and next friend; and Goldie Sutter, Plaintiffs, v. Darrell C. HOLLAND and Eugene D. Finchum and Ivan Mulien, a co-partnership d/b/a Finchum Trucking Company, Defendants. Sandra Mae Rust CARR and Berbara Marie Rust Carr, minors, by Jeanne R. Carr, guardian of the estates and persons of said minors, Appellants, v. LaVera RUST, Administratrix of the Estate of Gerald Glen James Rust, deceased; Roberta Sutter, a minor, by Goldie Sutter, her mother and next friend; Goldie Sutter; Darrell C. Holland and Eugene D. Finchum and Ivan Mullen, a co- partnership d/b/a Finchum Trucking Company, Appellees.
• Court: United States Appellate Court of Illinois

Page 82

146 N.E.2d 82

15 Ill.App.2d 369, 67 A.L.R.2d 739

LaVera RUST, Administratrix of the Estate of Gerald Glen

James Rust, deceased; Roberta Sutter, a minor, by

Goldie Sutter, her mother and next

friend; and Goldie Sutter, Plaintiffs, v. Darrell C. HOLLAND and Eugene D. Finchum and Ivan Mulien, a

co-partnership d/b/a Finchum Trucking Company, Defendants.

Sandra Mae Rust CARR and Berbara Marie Rust Carr, minors, by

Jeanne R. Carr, guardian of the estates and persons of said minors, Appellants, v. LaVera RUST, Administratrix of the Estate of Gerald Glen

James Rust, deceased; Roberta Sutter, a minor, by Goldie

Sutter, her mother and next friend; Goldie Sutter; Darrell

C. Holland and Eugene D. Finchum and Ivan Mullen, a co-

partnership d/b/a Finchum Trucking Company, Appellees.

Gen. No. 11090.

Appellate Court of Illinois, Second District, First Division.

Nov. 25, 1957.

James L. Coburn, Elizabeth, Wm. T. Connery, Michael A. Stapleton, Dubuque, Iowa, for appellants.

Harold D. Nagel, Stockton, Nack & Nack, Galena, for appellees.

DOVE, Presiding Justice.

The only question presented by this appeal is the proper distribution of the proceeds of a judgment recovered under the wrongful death act by LaVara Rust as administrator of the estate of Gerald Glen James Rust, deceased.

From the pleadings and evidence it appears that the decedent, Gerald Glen James Rust, died on August 11, 1956, as the result of an automobile collision. At that time he was 34 years of age and employed as a truck driver and bartender and his earnings were between $65 and $100 per week. A number of years before his death he had married Jeanne Rust and to this marriage two children were born, Sandra Mae Rust and Barbara Marie Rust.

On March 6, 1947, this marriage was terminated by a decree of divorce rendered by the circuit court of Jo Daviess County. On July 25, 1949, the same court in the same proceeding directed Gerald Glen James Rust to pay to Jeanne Rust the sum of $2,000 in full payment and settlement of all claims for support and maintenance of said Sandra Mae Rust and Barbara Marie Rust. The order was complied with.

Subsequently Jeanne Rust married John H. Carr and on December 28, 1949, Mr. and Mrs. Carr legally adopted Mrs. Carr's children by her former marriage and the name of Sandra Mae Rust became Sandra Mae Rust Carr and the name of Barbara Marie Rust became Barbara Marie Rust Carr and these parties are the appellants in this appeal.

The record further discloses that in 1948 Gerald Glen James Rust and LaVera Rust were married and appellees Gayle Rust, 7 years of age and Gerald Rust, 5 years of age, are children of this marriage. In September 1954 Gerald Glen James Rust left his wife and children but from the time of their separation until the second week in December 1954, he paid his wife $50 per week for the support of herself and children and thereafter, until the time of his death, he paid her $40 per week, for such support. Upon the death of her husband. LaVera Rust was appointed administratrix of his estate and as such administratrix recovered the judgment on November 16, 1956, which is the subject matter of this controversy.

The record further discloses that on the day the judgment in favor of LaVera Rust, administratrix of the estate of her deceased husband, was rendered an order was entered distributing said judgment as follows: LaVera Rust, widow, $7,000; Gayle Rust, $6,000; Gerald Rust, $6,000; Sandra Mae Rust Carr, $1,000; and Barbara Marie Rust Carr, $1,000.

Thereafter, the two Carr children, by their mother, Jeanne Rust Carr, as the guardian of their estates, filed a petition to modify and amend this order of distribution, insisting that they had not been awarded their fair and just propertion of this judgment.

Gayle Rust and Gerald Rust, by their mother as their guardian, answered this petition and filed a cross-petition which averred that on December 28, 1949, the District Court of Dubuque County, Iowa, entered a decree of adoption by the provisions of which Sandra Mae Rust Carr and Barbara Marie Rust Carr became the children of John H. Carr and Jeanne R. Carr; that they were not dependent upon, or dependents of, Gerald Glen James Rust, deceased, on November 16, 1956, or at the time of his death. This cross-petition prayed for an order distributing this judgment solely to LaVera Rust, widow, and to Gayle Rust and Gerald Rust, her minor children.

A hearing was had upon the petition and cross-petition resulting in an order modifying the previous order and making distribution according to the prayer of the cross-petition, awarding LaVera Rust $7,000, Gayle Rust, $7,000, and Gerald Rust $7,000. To reverse this order Sandra Mae Rust Carr and Barbara Marie Rust Carr appeal.

It is argued by counsel for appellants that inasmuch as appellants had a right to inherit from their natural father, Gerald Glen James Rust, and had a right to look to him for support, they should be entitled to share in the judgment obtained under the wrongful death act, as that act compensates not only for the present but also for the future loss of support. It is insisted that appellants are lineal kinsmen of decedent and in cases arising out of the wrongful death act a presumption of pecuniary loss obtains from that relationship alone and it does not follow that because appellants were not dependent on decedent at the time of his death they would not be dependent upon him in the future.

It is insisted by counsel for appellees that the pleadings and evidence disclose that appellees were the only persons who were dependent upon decedent at the time of his death and thus were the only persons entitled, under the statute, to share in the distribution of this...