{ "id": 3097108, "name": "RONALD ELLIOTT et al., Ex'rs, et al., Appellants and Appellees, v. HILDA WILLIS et al., Appellees and Appellants", "name_abbreviation": "Elliott v. Willis", "decision_date": "1982-09-30", "docket_number": "No. 54308, 54373 cons.", "first_page": "530", "last_page": "545", "citations": [ { "type": "official", "cite": "92 Ill. 2d 530" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "71 Ill. 2d 277", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449226 ], "year": 1967, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0277-01" ] }, { "cite": "37 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864932 ], "weight": 2, "pin_cites": [ { "page": "472" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0470-01" ] }, { "cite": "59 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3358154 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0262-01" ] }, { "cite": "82 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3222728 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0001-01" ] }, { "cite": "84 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3206302 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0791-01" ] }, { "cite": "105 N.W.2d 118", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "pin_cites": [ { "page": "122" }, { "page": "122-23" } ], "opinion_index": 0 }, { "cite": "361 Mich. 331", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1856816 ], "weight": 2, "pin_cites": [ { "page": "339" }, { "page": "339-40" } ], "opinion_index": 0, "case_paths": [ "/mich/361/0331-01" ] }, { "cite": "202 N.W.2d 300", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1960, "opinion_index": 0 }, { "cite": "388 Mich. 637", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1909843 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/mich/388/0637-01" ] }, { "cite": "7 Ill. 2d 608", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2712058 ], "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0608-01" ] }, { "cite": "300 U.S. 342", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 336750 ], "weight": 3, "pin_cites": [ { "page": "350-51" }, { "page": "690" }, { "page": "456-57" } ], "opinion_index": 0, "case_paths": [ "/us/300/0342-01" ] }, { "cite": "23 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2797943 ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0326-01" ] }, { "cite": "61 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3348020 ], "weight": 2, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0067-01" ] }, { "cite": "88 S.D. 111", "category": "reporters:state", "reporter": "S.D.", "case_ids": [ 4737489 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/sd/88/0111-01" ] }, { "cite": "22 S. Ct. 806", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1966, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "256 P.2d 603", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "117 Cal. App. 2d 492", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2204837 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/117/0492-01" ] }, { "cite": "77 S. Ct. 219", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "1 L. Ed. 2d 170", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "352 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6316704, 6316002, 6316942, 6316463, 6315739 ], "opinion_index": 0, "case_paths": [ "/us/352/0937-04", "/us/352/0937-02", "/us/352/0937-05", "/us/352/0937-03", "/us/352/0937-01" ] }, { "cite": "8 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2715560 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0164-01" ] }, { "cite": "414 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716418 ], "weight": 7, "pin_cites": [ { "page": "587" }, { "page": "22" }, { "page": "816" } ], "opinion_index": 0, "case_paths": [ "/us/414/0573-01" ] }, { "cite": "8 Ill. 2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716816 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/8/0160-01" ] }, { "cite": "227 U.S. 59", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8285427 ], "opinion_index": 0, "case_paths": [ "/us/227/0059-01" ] }, { "cite": "237 Ill. 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3386434 ], "opinion_index": 0, "case_paths": [ "/ill/237/0104-01" ] }, { "cite": "330 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5205259 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ill/330/0571-01" ] }, { "cite": "402 Ill. 311", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617357 ], "weight": 4, "year": 1949, "pin_cites": [ { "page": "316-17" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0311-01" ] }, { "cite": "52 Ill. 290", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5300825 ], "opinion_index": 0, "case_paths": [ "/ill/52/0290-01" ] }, { "cite": "198 Ill. 562", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 845408 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/198/0562-01" ] }, { "cite": "222 Ill. 462", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3339684 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/222/0462-01" ] }, { "cite": "22 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "weight": 4, "pin_cites": [ { "page": "82-83" }, { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "13 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2773437 ], "weight": 4, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/13/0026-01" ] }, { "cite": "20 Ill. 2d 406", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2736981 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-2d/20/0406-01" ] }, { "cite": "58 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953047 ], "year": 1960, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0159-01" ] }, { "cite": "89 Ill. App. 3d 1144", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5536997 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/1144-01" ] } ], "analysis": { "cardinality": 1058, "char_count": 25647, "ocr_confidence": 0.74, "pagerank": { "raw": 8.311071021377941e-07, "percentile": 0.9753587950494411 }, "sha256": "81997dd8fe7b27c09d60c03721244616565e732d32f1e7e9088a18863530683b", "simhash": "1:ebea7fe7e334dddf", "word_count": 4332 }, "last_updated": "2023-07-14T21:36:19.227559+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RONALD ELLIOTT et al., Ex\u2019rs, et al., Appellants and Appellees, v. HILDA WILLIS et al., Appellees and Appellants." ], "opinions": [ { "text": "JUSTICE CLARK\ndelivered the opinion of the court:\nOn April 13, 1976, Paul Elliott was killed as a result of a collision between the automobile he was driving and a pickup truck driven by defendant Hilda Willis. The executors of the estate filed a wrongful death action in the circuit court of McLean County pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) against Hilda Willis and her daughter, Carol, whose truck Hilda was driving at the time of the accident. Verla Elliott, Mr. Elliott\u2019s widow, also brought suit individually for her own personal injuries.\nDuring the conference on jury instructions the defendants tendered defendants\u2019 instruction No. 3 to the trial court. This is a modification of Illinois Pattern Jury Instruction (IPI), Civil, No. 31.07 (2d ed. 1971). It read:\n\u201cIn determining \u2018pecuniary injuries\u2019 you may not consider the following factors:\n1. The pain and suffering of the decedent;\n2. The loss of decedent\u2019s society by the widow and next of kin;\n3. The grief or sorrow of the widow and next of kin.\u201d\n(Emphasis added.)\nThe plaintiffs objected to the language in paragraph 2. The instruction was given by the court over the plaintiffs\u2019 objection.\nThe jury returned verdicts awarding Verla Elliott $50,182.50 for her own personal injuries and awarded the estate $4,500 (stipulated prior to trial to be the value of Paul Elliott\u2019s car).\nA judgment order was entered by the trial judge on February 20, 1979, and modified without objection on February 22, 1979. On February 23, 1979, a post-trial motion was filed by the estate requesting a trial on damages only or a new trial on all issues. A hearing was held on March 19, 1979, at which time the post-trial motion filed by the estate was denied. The estate immediately filed a notice of appeal.\nOn March 20, 1979, the defendants filed a post-trial motion seeking relief from both judgments. A hearing was held on March 29, 1979, and the defendants\u2019 motion was denied. Defendants filed their notice of appeal on April 10, 1979.\nThe appellate court on its own motion found that the defendants\u2019 notice of appeal was not timely filed and dismissed their appeal. (89 Ill. App. 3d 1144.) The appellate court agreed with the estate\u2019s assertion on appeal that the verdict was too low as a matter of law. The appellate court also found that the jury should have been instructed concerning Verla Elliott\u2019s loss of consortium. The plaintiff estate has also complained on appeal that the trial court erred in refusing to instruct the jury on loss of accumulation to the estate caused by the payment of estate taxes. The appellate court concluded that the trial court was correct in its refusal to instruct the jury concerning the estate\u2019s loss of accumulation. We granted separate petitions for leave to appeal filed by the estate and defendants.\nSection 2 of the Wrongful Death Act provides:\n\u201cEvery such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.\u201d (Ill. Rev. Stat. 1975, ch. 70, par. 2.)\nThe plaintiffs had asked the trial court that the jury be instructed that they should, in assessing damages, consider the reasonable value of the society, companionship and conjugal relationship that Verla Elliott had with her husband and which she has been deprived of because of his death. The trial court refused to tender that instruction. Thus the question with which we are faced is whether loss of consortium is compensable as a \u201cpecuniary injur[y]\u201d under the Wrongful Death Act.\nThe estate and defendants agree that consortium is unique to a marriage partner (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162). It includes society, guidance, companionship, felicity, and sexual relations. Dini v. Naiditch (1960), 20 Ill. 2d 406; see Hall v Gillins (1958), 13 Ill. 2d 26.\nHall v. Gillins (1958), 13 Ill. 2d 26, and Knierim v. Izzo (1961), 22 Ill. 2d 73, where this court previously examined common law actions brought to recover for loss involving destruction of the family unit, are particularly helpful. The court reasoned in both of those decisions that since the remedy sought in each case was not significantly different from the statutory remedy available under the Wrongful Death Act, which allows compensation for \u201cpecuniary injuries,\u201d a common law action in tort would not be recognized.\nIn Hall v. Gillins (1958), 13 Ill. 2d 26, the child and widow of the decedent brought a common law action alleging deprivation of the support, companionship, guidance, advice and affection of the father and husband. In addressing the issue of recoverable damages the court said:\n\u201cThe gap between the \u2018damages for destruction of the family unit\u2019 that plaintiffs claim, and the \u2018just compensation with reference to the pecuniary injuries resulting from such death\u2019 that the statute allows, is not so wide as the words used would suggest. The term \u2018pecuniary injuries\u2019 has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case. *** The broad scope of the phrase \u2018pecuniary injuries\u2019 is further shown by those cases which hold that in the case of a child the jury may take into account the loss of instruction and moral, physical and intellectual training brought about by the death of the father. Goddard v. Enzler, 222 Ill. 462; Ittner Brick Co. v. Ashby, 198 Ill. 562; Illinois Central Railroad Co. v. Weldon, 52 Ill. 290.\u201d 13 Ill. 2d 26, 31.\nIn Knierim v. Izzo (1961), 22 Ill. 2d 73, 82-83, the court relied upon Hall in finding \u201cthat the differences between an action for loss of consortium resulting from the death of a husband and an action for pecuniary loss under the Wrongful Death Act are not sufficiently significant to warrant us recognizing the action for loss of consortium as an additional remedy available to the widow.\u201d\nIn addressing the loss of consortium issue in Knierim the court reiterated our words in Hall that \u201c '*** [t]he term \u201cpecuniary injuries\u201d has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case.\u2019 \u201d (22 Ill. 2d 73, 82.) While neither Knierim nor Hall explicitly held that loss of consortium was to be considered by the jury in deciding what the appropriate amount of damages was, it is apparent that the court denied the common law counts in both actions because the remedy available in the preemptive wrongful death statute allowed compensation for the injuries alleged.\nThe defendants rely upon Howlett v. Doglio (1949), 402 Ill. 311, to support their assertion that \u201cpecuniary injuries\u201d under the Wrongful Death Act does not include loss of consortium. The dissenting justice in the appellate court also buttressed his opinion with the language of Howlett. The plaintiff in Howlett v. Doglio (1949), 402 Ill. 311, brought suit under the Liquor Control Act (Ill. Rev. Stat. 1947, ch. 43, par. 135) to recover damages for the death of her daughter. The court held that the plaintiff did not sustain an injury within the ordinary meaning of section 14 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1947, ch. 43, par. 135). The court compared damages recoverable under the Liquor Control Act with the damages available under the Wrongful Death Act (Ill. Rev. Stat. 1947, ch. 70, par. 2). The majority, in dicta, recognized that under the Wrongful Death Act a presumption of pecuniary loss exists where the next of kin are lineal heirs and that the familial relationship by itself is enough to sustain a judgment awarding substantial damages, without proof of actual loss. (Howlett v. Doglio (1949), 402 Ill. 311; Wilcox v. Bierd (1928), 330 Ill. 571; Dukeman v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1908), 237 Ill. 104.) The court then said:\n\u201cThe expression \u2018pecuniary injuries,\u2019 employed in the Wrongful Death Act, refers to a measurement of damages and is not synonymous with \u2018injury in property,\u2019 appearing in the Dram Shop Act. As pointedly observed in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, \u2018A pecuniary loss or damage must be one which can be measured by some standard. It is a term employed judicially, \u2018not only to express the character of the loss of the beneficial plaintiff which is the foundation of recovery, but also to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation.\u2019 Patterson, Railway Accident Law, par. 49.\u201d (402 Ill. 311, 316-17.)\nThat observation was implicitly overruled in Hall and Knierim and is inconsistent with this court\u2019s holding in Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 160, as well as the United States Supreme Court\u2019s decision in Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 39 L. Ed. 2d 9, 94 S. Ct. 806.\nIn Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, cert denied (1956), 352 U.S. 937, 1 L. Ed. 2d 170, 77 S. Ct. 219, the court, in construing the Wrongful Death Act (Ill. Rev. Stat. 1951, ch. 70, par. 2), said that it has been repeatedly held that the jury may award damages for such intangibles as the decedent\u2019s felicity and care as a father (8 Ill. 2d 164, 179). The court looked to Miller v. Southern Pacific Co. (1953), 117 Cal. App. 2d 492, 256 P.2d 603, where a jury\u2019s award was upheld for children\u2019s loss of the father\u2019s guidance, attention, advice, training, and instruction. This court had also previously upheld awards for a child\u2019s loss of instruction and training due to the death of the father. (Goddard v. Enzler (1906), 222 Ill. 462; Anthony Ittner Brick Co. v. Ashby (1902), 198 Ill. 562.) Since we have said that the felicity and care of a father are capable of evaluation as \u201cpecuniary injuries\u201d under the Wrongful Death Act, we are compelled to conclude that the companionship and conjugal relationship of a spouse are equally compensable as \u201cpecuniary injuries.\u201d\nIn Gaudet the United States Supreme Court permitted recovery for loss of society in aligning the maritime wrongful death remedy with a majority of States\u2019 wrongful death statutes and incorporated one commentator\u2019s observation that \u201c \u2018[wjhether such damages are classified as \u201cpecuniary\u201d or recognized and allowed as non-pecuniary, the recent trend is unmistakably in favor of permitting such recovery.\u2019 \u201d (Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 587, 39 L. Ed. 2d 9, 22 S. Ct. 806, 816, quoting S. Speiser, Recovery for Wrongful Death 218 (1966).) The court expressly took notice that the wrongful death statutes of California, Delaware, Michigan, Minnesota, Montana, Pennsylvania, Texas, and the Virgin Islands all limit recovery to pecuniary losses; and all have been construed by those States\u2019 courts as permitting recovery for the pecuniary value of the decedent\u2019s society. (Sea-Land Services, Inc. v. Gaudet (1974), 414. U.S. 573, 587, 39 L. Ed. 2d 9, 22, 94 S. Ct. 806, 816.) South Dakota in Anderson v. Lale (1974), 88 S.D. 111, 216 N.W.2d 152, has also permitted recovery for loss of companionship and society as pecuniary losses under the South Dakota wrongful death act. See S. Speiser, Recovery for Wrongful Death sec. 3:49 (2d ed. 1975).\nThe appellate court in Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, affirmed the dismissal of one count in a complaint that sought compensation for loss of society in a wrongful death action. There the appellate court correctly noted that the term \u201cpecuniary injuries\u201d is broadly construed and a widow is presumed to incur such losses without proof of actual loss. However, the court then incorrectly cited Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, finding that this court had \u201cspecifically refused to include within the scope of pecuniary losses any recovery for loss of society\u201d (61 Ill. App. 3d 67, 70).\nIn Zostautas the parents of a five-year-old boy brought an action for breach of contract and a claim under the Wrongful Death Act (Ill. Rev. Stat. 1959, ch. 70, par. 1) to recover damages for the death of their son, who died while undergoing a tonsillectomy. The court said that the parents\u2019 mental anguish was not recoverable in a wrongful death action. We agree with the appellate court in this case that the loss of the decedent\u2019s society, companionship and conjugal relations is sufficiently distinct from bereavement to distinguish this action from the complaint in Zostautas. This court held in Zostautas that a plaintiff could maintain a cause of action under the Wrongful Death Act and recalled the words of Justice Cardozo that \u201c[i]t would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.\u201d Van Beeck v. Sabine Towing Co. (1937), 300 U.S. 342, 350-51, 81 L. Ed. 685, 690, 57 S. Ct. 452, 456-57.\nThe plaintiff in Zostautas did not object to the proffered jury instruction stating that, in determining pecuniary injuries, the grief or sorrow of the widow and next of kin cannot be considered. To allow a plaintiff to recover damages for emotional distress brought on by the decedent\u2019s death is different from allowing compensation for the benefits of the companionship that the widow would have enjoyed had her husband not died.\nIt is true that damages for loss of consortium are not capable of being given the detailed in-depth analysis that an expert can be called upon to testify about in calculating a decedent\u2019s professional worth where future earnings of an individual employed in a particular field can be measured with precision and particularity. Just the same the damages for loss of a husband\u2019s society, companionship and sexual relations are not immeasurable. All of the elements that comprise what is considered to be loss of consortium may not be the most tangible items, but a jury is capable of putting a monetary worth on them. Therefore, to be consistent with the broad interpretation of \u201cpecuniary injuries\u201d under the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) we find loss of consortium to be included.\nThe purpose of the Wrongful Death Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent\u2019s death. (Knierim v. Izzo (1961), 22 Ill. 2d 73; Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 613.) It is intended to provide the surviving spouse the benefits that would have been received from the continued life of the decedent. The jury should have been instructed that the value of the decedent\u2019s companionship and conjugal relations could be considered in computing the damages to be recovered.\nIn Smith v. City of Detroit (1972), 388 Mich. 637, 202 N.W.2d 300, the Supreme Court of Michigan reaffirmed the holding of Wycko v. Gnodtke (1960), 361 Mich. 331, 339, 105 N.W.2d 118, 122, that loss of companionship was recoverable as a pecuniary loss under the Michigan Wrongful Death Act. The court in rejecting the strict economic value measure of pecuniary loss said:\n\u201cThe pecuniary value of a human life is a compound of many elements. * * * [A]n individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship. The human companionship thus afforded has a definite, substantial, and ascertainable pecuniary value and its loss forms a part of the \u2018value\u2019 of the life we seek to ascertain. *** It is true, of course, that there will be uncertainties in all of these proofs, due to the nature of the case, but we are constrained to observe that it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation Ms wrong has created.\u201d (Wycko v. Gnodtke (1960), 361 Mich. 331, 339-40, 105 N.W.2d 118, 122-23.)\nOne consideration in assessing the pecuniary value of the decedent\u2019s worth is the widow\u2019s loss of consortium.\nIn view of our holding it is clear that the jury was not properly instructed on the measure of damages. The language of IPI Civil No. 31.07 that indicates that in determining \u201cpecuniary injuries\u201d the jury may not consider \u201c[t]he loss of decedent\u2019s society by the widow and next of kin\u201d is no longer valid. In determining the pecuniary value of a spouse under IPI Civil No. 31.04 the society, companionship and conjugal relationship that constitute loss of consortium are factors that the jury may consider.\nAt trial the estate sought to introduce proof of the State inheritance taxes and the Federal estate taxes it was required to pay after the decedent\u2019s death. The State inheritance and Federal estate taxes were not levied on the estate because of any wrongful conduct of the defendants. The estate, however, asserts that payment of the taxes should be considered by the jury because they were prematurely paid. The plaintiff estate urged the court to employ a loss-to-estate analysis that looks to the amount the decedent would reasonably be expected to save and accumulate (S. Speiser, Recovery for Wrongful Death sec. 3:1 (2d ed. 1975).) As we have previously noted, damages under the Wrongful Death Act are assessed in accordance with the loss to decedent\u2019s survivors. (Ill. Rev. Stat. 1975, ch. 70, par. 2.) The test is a measurement of benefits of pecuniary value that the decedent might have been expected to contribute to the surviving spouse and children had the decedent lived. But whatever measurement is used to assess losses \u2014 loss of reasonable value of. accumulation to the estate or not \u2014 we find no support in any jurisdiction that would permit the kind of recovery asked for by the estate here. The estate seeks to recover investment income that will be lost from cashing assets to discharge the estate\u2019s tax liability. It is not recoverable. (See Speiser, Recovery for Wrongful Death sec. 6:11 (2d ed. 1975).) The trial court acted properly in denying admission of evidence concerning the State inheritance and Federal estate taxes.\nIt is necessary to briefly reconstruct the procedural history of this case. Jury verdicts were entered in favor of both the estate and Verla Elliott, and the judgment was entered on February 22, 1979. On February 23, 1979, a post-trial motion was filed by the estate. The motion asked for a new trial on the issue of damages only, or in the alternative a new trial on the merits of counts I and II concerning losses to the estate. The estate complained of certain jury instructions improperly given and certain jury instructions improperly refused by the trial judge. On March 19, 1979, a hearing was conducted on the estate\u2019s post-trial motion. The motion was denied, and counsel for the estate immediately filed a notice of appeal. On March 20, 1979, the defendants filed a post-trial motion seeking relief from both the judgment in favor of the estate and in favor of Verla Elliott. On April 10, 1979, the defendants\u2019 post-trial motion was denied. The defendants immediately filed a notice of appeal. The appellate court ruled on its own motion that defendants' notice of appeal was not timely filed and dismissed the defendants\u2019 appeal. The appellate court found that Rule 303 (73 Ill. 2d R. 303) completely relieves the party making a later appeal from filing a post-trial motion. Supreme Court Rule 303 provides in pertinent part:\n\u201cIf a timely notice of appeal is filed and served by a party, any other party, within 10 days after service upon him, or within 30 days after the entry of judgment, whichever is later, may join in the appeal, appeal separately, or cross-appeal by filing a notice of appeal, indicating which type of appeal is being taken.\u201d\nThe appellate court held that once the estate filed its notice of appeal the trial court lost all jurisdiction to pass on defendants\u2019 post-trial motion. Prior to the appellate decision in this case, three other divisions of the appellate court (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791; Bitzer Croft Motors, Inc. v. Pioneer Bank & Trust Co. (1980), 82 Ill. App. 3d 1; Flynn v. Cusentino (1978), 59 Ill. App. 3d 262) ruled that a post-trial motion is required even when an opposing party has filed a notice of appeal.\nSection 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(3)) addresses the filing of post-trial motions in jury cases. It provides in pertinent part:\n\u201c(3) Post-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days or any extensions thereof.\u201d\nSupreme Court Rule 366 addresses the scope of appellate review. It provides:\n\u201cA party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.\u201d 73 Ill. 2d R. 366(b)(2)(iii).\nThe reasoning of Flynn, Bitzer Croft Motors, Inc. and Farwell is supported by the rationale of Rule 366 that issues must be presented to the circuit court in order to give the trial judge an opportunity to review possible errors that may have occurred. Both Farwell and Bitzer emphasize that one party\u2019s filing of a notice of appeal under Rule 303(a) (73 Ill. 2d R. 303(a)) should not foreclose the right of another party to file a timely post-trial motion. (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791; Bitzer Croft Motors, Inc. v. Pioneer Bank & Trust Co. (1980), 82 Ill. App. 3d 1.) That is correct. We are not operating under a race statute that would effectively deny a party a chance to bring a possible error to the trial court\u2019s attention.\nAlthough the jurisdiction of the appellate court attaches instanter upon the filing of a notice of appeal (City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472), we find that the circuit court retained jurisdiction to hear the defendants\u2019 post-trial motion that complained of the personal injury-award to Verla Elliott and asserted that the decedent was guilty of contributory negligence as a matter of law. (See In re Estate of Lucas (1978), 71 Ill. 2d 277, 281.) In City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472, the plaintiff asked the trial court to vacate a judgment it had previously entered from which the defendant in the case had filed a proper notice of appeal. A party cannot petition a trial court to reconsider its judgment once an appeal has been properly filed from that judgment. The defendants, here, are not asking that the trial court vacate its earlier order denying the relief sought by the estate in its post-trial motion; the defendants are rather asserting that other errors were made at trial and are properly bringing the claims to the trial court so that it may first review the alleged errors. The defendants brought their post-trial motion within the prescribed 30-day limit after the trial court\u2019s entry of judgment (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(3)). Had the defendants failed to file their post-trial motion, the complained-of errors would not have been adequately preserved for the purposes of review. The plaintiff\u2019s filing of the notice of appeal did not divest the trial court from ruling on the defendants\u2019 timely post-trial motion concerning issues independent of those raised by the estate. The trial court denied the defendants\u2019 post-trial motion on March 29. Notice of appeal is proper when it is filed \u201cwithin 30 days after the entry of the order disposing of the [post-trial] motion.\u201d (73 Ill. 2d R. 303(a).) Thus, the defendants\u2019 filing of their notice of appeal on April 10 was proper.\nSince the appellate court erroneously dismissed the defendants\u2019 appeal, it is necessary for us to remand to the appellate court for consideration of the alleged errors that defendants raised in their post-trial motion of March 20, 1979, including the claim that they are entitled to a judgment as a matter of law. Unless the appellate court finds this claim has merit, the court shall remand for a new trial on the issue of damages, with directions that the jury be instructed to consider the widow\u2019s loss of consortium. In view of this disposition, we need not consider whether the estate adequately preserved the complained-of error that the damages awarded to the estate were inadequate as a matter of law.\nFinally, we hold that our affirmance of the appellate court\u2019s holding allowing the jury to be instructed on the loss of consortium in cases brought under the Wrongful Death Act applies to this case and all claims not finally adjudicated.\nAffirmed in part and reversed in part and remanded, with directions.", "type": "majority", "author": "JUSTICE CLARK" } ], "attorneys": [ "Ronald N. Hanley, of Hanley, Traub & Hanley, of Fairbury, for appellants and appellees Ronald Elliott et al.", "Costigan & Wollrab, of Bloomington, for appellees and appellants Hilda Willis et al.", "George M. Elsener, Miles N. Beermann, and Susan L. Brody, of Chicago, for amicus curiae Illinois Trial Lawyers Association." ], "corrections": "", "head_matter": "(No. 54308, 54373 cons.\nRONALD ELLIOTT et al., Ex\u2019rs, et al., Appellants and Appellees, v. HILDA WILLIS et al., Appellees and Appellants.\nOpinion filed September 30, 1982.\nModified on denial of rehearing November 24, 1982.\nRonald N. Hanley, of Hanley, Traub & Hanley, of Fairbury, for appellants and appellees Ronald Elliott et al.\nCostigan & Wollrab, of Bloomington, for appellees and appellants Hilda Willis et al.\nGeorge M. Elsener, Miles N. Beermann, and Susan L. Brody, of Chicago, for amicus curiae Illinois Trial Lawyers Association." }, "file_name": "0530-01", "first_page_order": 544, "last_page_order": 559 }