Singh v. Air Illinois, Inc.

• Decision Date: 11 January 1988
• Docket Number: No. 87-0200,87-0200
• Citation: 520 N.E.2d 852,117 Ill.Dec. 501,165 Ill.App.3d 923
• Parties: , 117 Ill.Dec. 501 Jasbir K. SINGH, Administrator of the Estate of Dalbir Singh, Deceased, Plaintiff-Appellee, v. AIR ILLINOIS, INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 852

520 N.E.2d 852

165 Ill.App.3d 923, 117 Ill.Dec. 501

Jasbir K. SINGH, Administrator of the Estate of Dalbir

Singh, Deceased, Plaintiff-Appellee, v. AIR ILLINOIS, INC., a corporation, Defendant-Appellant.

No. 87-0200.

Appellate Court of Illinois,

First District, First Division.

Jan. 11, 1988.

Pretzel & Stouffer, Chartered, Chicago (Michael J. Merlo, of counsel), for defendant-appellant.

Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, Aurora (Peter K. Wilson, Jr., Donald C. Bevins, Constance J. Burnett, of counsel), for plaintiff-appellee.

Justice BUCKLEY delivered the opinion of the court:

Following a jury trial, Jasbir Singh (plaintiff), the administrator of the estate of her brother Dalbir Singh (decedent), was awarded $400,000 in a wrongful death action brought against Air Illinois, Inc. (defendant). Decedent was a passenger on defendant's flight 710 when it crashed on October 11, 1983, while enroute from Springfield to Carbondale, Illinois. Defendant's motion for a new trial was denied, and it appeals contending that the trial court committed numerous errors including: erroneously admitting and excluding certain evidence; improperly instructing the jury; refusing to give the jury essential instructions; and allowing the jury to return a verdict based on inappropriate deliberations. It is significant to note that on appeal, the question is not whether the trial was error free, but whether error occurred which prejudiced the appellant or unduly affected the outcome. (Ruffiner v. Material Service Corp. (1985), 134 Ill.App.3d 747, 89 Ill.Dec. 414, 480 N.E.2d 1157.) Given that the deficiencies asserted by defendant do not rise to the level of reversible error, we affirm.

The evidence at trial disclosed that decedent was born in India, had six brothers and sisters, and emigrated with his family to Toronto, Canada at age 15. He attended various schools in India and Toronto, and ultimately graduated from the University of Illinois in 1982. In late 1982, decedent and his brother formed a business which involved the selling of computer office management systems to physicians. Decedent, age 26, was on his way to deliver a system when he was killed.

Aside from being industrious, decedent was the youngest member of the board of trustees at his temple in Palatine, Illinois, was active in his community, and visited his parents and other family members often. Because decedent was responsible for his parents under religious custom, he purchased a home in Barrington, Illinois, where the three planned to live along with decedent's future wife. Decedent was to be married on October 26, 1983, just two weeks after his death.

On appeal, defendant initially argues that the trial court erred when it improperly allowed the jury to consider certain irrelevant and prejudicial testimony. Specifically, defendant objects to the testimony that: (1) decedent was the guardian of plaintiff's children; (2) decedent had offered to donate a kidney to his father; (3) Sikh religious custom required a child to support his parents; and (4) decedent was an active member of his church.

Relevancy is established where the offered evidence tends to prove a fact in controversy or renders a matter at issue more or less probable. (Svenson v. Miller Builders, Inc. (1979), 74 Ill.App.3d 75, 29 Ill.Dec. 931, 392 N.E.2d 628.) In determining relevancy, the court must consider the evidence in light of the factual issues raised in the case. (74 Ill.App.3d 75, 29 Ill.Dec. 931, 392 N.E.2d 628.) Here, the factual issues raised involved the value of the loss of support and society suffered by decedent's parents and siblings. In this regard, the challenged testimony was relevant as it tended to show the loving and caring relationship decedent had with family members as well as his potential to financially contribute to their welfare.

Defendant next contends that the trial court erred when it admitted the hearsay testimony of Lance Laterza, vice-president of Articulate Publications, Inc. Laterza testified that he had a business relationship with decedent, and as a result, co-authored a dedication in a software manual which stated, "To Dalbir Singh, a genius of practice management and a dear friend we all miss very much." We initially point out that while defendant objected to Laterza's testimony based on its probative value, no objection was made on hearsay grounds. Given that defendant failed to make an appropriate objection to this testimony, the issue is waived for purposes of review. (Gibson v. State Farm Mutual Auto Insurance Co. (1984), 125 Ill.App.3d 142, 80 Ill.Dec. 577, 465 N.E.2d 689.) In any event, Laterza's testimony did not constitute hearsay since he was the declarant and was present in court to testify and be cross-examined as to the declaration. (Pyse v. Byrd (1983), 115 Ill.App.3d 1003, 71 Ill.Dec. 495, 450 N.E.2d 1374.) Moreover, the testimony regarding Laterza's telephone conversation with decedent, also challenged by defendant on appeal, was not hearsay as only the general subject matter of that conversation was elicited.

Defendant also raises three objections to the testimony of plaintiff's expert economist, Dr. Charles Linke. First, defendant contends that Dr. Linke's testimony violated the 60-day requirement of Supreme Court Rule 220 (Ill.Rev.Stat.1985, ch. 110A, par. 220), because he updated his 1983 report on the present value calculation of decedent's earning capacity just prior to trial. Section 220(b), however, merely allows a trial court to establish a disclosure schedule if an expert witness is not otherwise disclosed. Here, Dr. Linke was otherwise disclosed, and therefore, section 220(b) is not applicable. Rather 220(c), which relates to discovery of an expert's opinion, states:

"(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel." (Ill.Rev.Stat. ch. 110A, par. 220(c)(3).)

The Committee Comments on this section provide:

"In order to prevent an undisclosed shift in theory or belief, the rule requires that a party seasonably submit a modified report or supplemental answers taking into account shifts in the expert's views." Ill.Ann.Stat., ch. 110A, par. 220, Council Commentary, at 440 (Smith-Hurd 1985).

Having reviewed the two reports, we conclude that Dr. Linke's revisions did not involve a "shift in theory or belief." Linke's revised report was merely an update of the original, using the same methodology and tables to determine present cash value. Accordingly, there was no violation of Supreme Court Rule 220.

Defendant additionally argues that Dr. Linke's testimony regarding decedent's future earning capacity was erroneously admitted because it was speculative. Dr. Linke based his testimony upon the earnings of the average male Illinois worker of decedent's age, education level, and life expectancy. Despite defendant's assertion to the contrary, such measure of future earning capacity has generally been used in wrongful death actions. (See e.g., Baird v. Chicago, Burlington & Quincy (1976), 63 Ill.2d 463, 349 N.E.2d 413; Peluso v. Singer General Precision, Inc. (1977), 47 Ill.App.3d 842, 8 Ill.Dec. 152, 365 N.E.2d 390.) Furthermore, the fact that decedent's actual earning history prior to his death fell below the average for his statistical peer group is of no significance since the proper standard for loss or impairment of future earnings is based upon earning capacity rather than actual earning history. See Robinson v. Greeley & Hansen (1983), 114 Ill.App.3d 720, 70 Ill.Dec. 376, 449 N.E.2d 250.

Lastly, defendant maintains that Dr. Linke improperly instructed the jury that the goal of their deliberations was to "award" plaintiff an amount which would replace decedent's income stream. While Dr. Linke did in fact use the word "award" in his testimony, there is no indication in the record that he instructed the jury to make an award as defendant claims. Furthermore, the trial judge specifically admonished the jury to follow the court's instructions in arriving at the final present cash value of any future earnings, thus eliminating any prejudice which may have resulted.

We now consider defendant's contention that the trial court erred in excluding the annuity testimony of Robert Ross and Mitchell Serota. Specifically, Robert Ross, an insurance broker, would have attestedto the cost of an annuity. ^* While we recognize that our supreme court has sanctioned the use of annuity tables in determining present cash value (Allendorf v. E.J. & E. Railway Co. (1956), 8 Ill.2d 164, 133 N.E.2d 288, cert. denied, (1956), 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53), the validity of such evidence does not signify that the cost of a particular annuity is likewise admissible, or that it is representative of the present value of lost earnings. On the contrary, the Allendorf court cautioned that expert testimony should be used only with neutral figures to describe to the jury a mathematical process which would simplify the jury's task of determining present value. In fact, other courts have noted the misleading nature of placing before jury the cost of an annuity contract as opposed to neutral figures. (Herman v. Milwaukee Children's Hospital (1984), 121 Wis.2d 531, 361 N.W.2d 297; Caldwell v. Southern Pacific Railway (S.D.Cal.1947), 71 F.Supp. 955.) Moreover, as an insurance broker relying on final quotations from outside sources, Ross could not be effectively cross-examined as to the basis and legitimacy of his testimony.

With respect to actuary Mitchell Serota, he was disclosed after trial had begun and two months after the final disclosure date set by the trial court. Under such circumstances, his exclusion was warranted. (See e.g., Fischer v. G & S Builders (1986), 147 Ill.App.3d 168, 100 Ill.Dec. 753, 497 N.E.2d 1022.) Furthermore, defendant overlooks that economist Dr....