Watson v. Fischbach

• Decision Date: 21 May 1973
• Docket Number: No. 45343,45343
• Citation: 54 Ill.2d 498,301 N.E.2d 303
• Parties: , 88 A.L.R.3d 919 Beverly A. WATSON, Appellant, v. Leander FISCHBACH et al., Appellees.
• Court: Illinois Supreme Court

Page 303

301 N.E.2d 303

54 Ill.2d 498, 88 A.L.R.3d 919

Beverly A. WATSON, Appellant, v. Leander FISCHBACH et al., Appellees.

No. 45343.

Supreme Court of Illinois.

May 21, 1973.

As Modified on Denial of Rehearing Sept. 27, 1973.

Peter Fitzpatrick and Francis W. Gulbranson, Chicago (Peter Fitzpatrick & Associates, Chicago, of counsel), for appellant.

UNDERWOOD, Chief Justice.

Plaintiff Beverly A. Watson, as personal representative of her deceased husband and for the benefit of her minor daughter and herself, brought this dramshop action against defendant tavern keepers for injury to plaintiff's means of support and for property damage. It was alleged that decedent's death, which occurred as a result of his car leaving the paved road and striking a telephone pole while he was the driver and sole occupant, resulted from his intoxication caused in whole or in part by alcoholic liquor purchased and consumed in the several places of business owned and operated by defendants. A jury trial resulted in a verdict for all defendants upon which judgment was entered. That judgment was affirmed on direct appeal to the appellate court. (6 Ill.App.3d 166, 284 N.E.2d 720.) We granted leave to appeal.

Plaintiff urges here that the trial court rulings permitting the jurors to be informed of her remarriage and interrogated regarding their acquaintanceship with her second husband, when coupled with cross-examination which established that the family was living in the same home occupied during the first marriage and that a son had been born to the second marriage, constituted reversible error necessitating a retrial. Additionally, plaintiff contends the trial court erred in rejecting her offer of proof of the results of a blood alcohol test performed on her deceased husband. In our judgment, however, the appellate court disposition of the latter issue was correct and adequate, and there is no need for further discussion here.

We recently (Mulvey v. Illinois Bell Telephone Co., 53 Ill.2d 591, 294 N.E.2d 689) had presented to us the question of the propriety of any reference in a jury trial to plaintiff's remarriage. While we there found it unnecessary to discuss the issue since the not guilty verdict indicated the jury had not reached the question of damages, the frequency with which the question arises persuades us that this court should speak to it.

The propriety of reference, in the trial of an action for the wrongful death of a deceased spouse, to the remarriage of the surviving spouse must be examined both as to its relevancy in determining damages and its relevancy in the selection of a fair and impartial jury. A very substantial majority of the jurisdictions which have considered the first question have held that remarriage of the surviving spouse, or the possibility thereof, does not affect the damages recoverable for the wrongful death of the deceased spouse. (Annot. (1963), 87 A.L.R.2d 252 (Michigan now appears to have reversed its minority position cited in the annotation; see Bunda v. Hardwick (1965), 376 Mich. 640, 138 N.W.2d 305); Stuart v. Consolidated Foods Corp. (1972), 6 Wash.App. 841, 496 P.2d 527; Dubil v. Labate (1968), 52 N.J. 255, 245 A.2d 177; Wiesel v. Cicerone (1970), 106 R.I. 595, 261 A.2d 889.) This view prevails in Illinois (Chicago and Eastern Illinois R.R. Co. v. Driscoll, 207 Ill. 9, 69 N.E. 620; Mulvey v. Illinois Bell Telephone Co., 5 Ill.App.3d 1057, 284 N.E.2d 356, aff'd on other grounds, 53 Ill.2d 591, 294 N.E.2d 689), and we have no reason to question its validity.

Stating that rule, however, is not dispositive of the more troublesome question of the relevancy of plaintiff's remarriage to the selection of a fair and impartial jury. Defendants, generally, urge that their right to jurors uninfluenced by possible relationships or acquaintanceships with plaintiff's new spouse or members of that family necessitates revealing to the jury the fact of plaintiff's remarriage and the identity of the new mate. Some, of course, would go further and adopt the Wisconsin rule (Jensen v. Heritage Mutual Insurance Co. (1964), 23 Wis.2d 344, 127 N.W.2d 228) Which holds remarriage or the possibility of it are proper factors for the jury's consideration in assessing damages in a wrongful death action. (See, also, Campbell v. Schmidt (Miss.1967), 195 So.2d 87.) Conversely, plaintiffs, generally, urge that such revelation inevitably results in a greater likelihood of a not guilty verdict, or, at the very least, a diminution of the damages which would otherwise have been awarded, and that this occurs despite cautionary instructions by the judge that the plaintiff's remarriage is totally irrelevant to the issues of liability and damages.

We are not persuaded that jurors will so far abdicate their responsibilities as to consider a remarriage in determining liability, assuming a properly restrictive and cautionary instruction has been requested and given. (Mulvey; Thompson v. Peters (1972), 386 Mich. 532, 194 N.W.2d 301.) And the possibility that the amount of damages awarded may be affected by knowledge of the fact that plaintiff has remarried, if it exists, must be weighed against what seems to us an element essential to the integrity of the jury trial process: that the parties to the litigation have a reasonable opportunity to ascertain that the fact-finding body is free from influence-producing relationships unfavorable to them.

There is no unanimity among the courts which have considered the relevance of a plaintiff's remarriage in the context of Voir dire examination. The opposing views are perhaps best illustrated by Wiesel v. Cicerone (1970), 106 R.I. 595, 261 A.2d 889, and Dubil v. Labate (1968), 52 N.J. 255, 245 A.2d 177. In Dubil the Supreme Court of New Jersey concluded that 'It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they...