{ "id": 3540264, "name": "MAUREEN VON SEGGREN, Plaintiff-Appellee, v. B. D. SMITH, Indiv. and d/b/a Wirtz-Roche-Smith Funeral Home, Defendant-Appellant and Counterdefendant (Nancy Sprowls et al., Plaintiffs; Robert Troost, Indiv. and d/b/a Riverhill Memorial Park, Defendant and Counterplaintiff)", "name_abbreviation": "Seggren v. Smith", "decision_date": "1987-01-13", "docket_number": "No. 2-85-0797", "first_page": "813", "last_page": "818", "citations": [ { "type": "official", "cite": "151 Ill. App. 3d 813" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "466 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 8500217 ], "pin_cites": [ { "page": "969, 973" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0964-01" ] }, { "cite": "415 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "1029-30" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474664 ], "year": 1981, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0177-01" ] }, { "cite": "475 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "879" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141899 ], "pin_cites": [ { "page": "500-01" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0486-01" ] } ], "analysis": { "cardinality": 603, "char_count": 10748, "ocr_confidence": 0.735, "pagerank": { "raw": 1.0928733594928254e-07, "percentile": 0.566076439205529 }, "sha256": "12ea63cdfb5e3b0cf7f5aeb3ea3c42770785b65fb0df17d1fe3274f9dfd3d150", "simhash": "1:c33eb0bf5e63637f", "word_count": 1723 }, "last_updated": "2023-07-14T16:55:10.892091+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MAUREEN VON SEGGREN, Plaintiff-Appellee, v. B. D. SMITH, Indiv. and d/b/a Wirtz-Roche-Smith Funeral Home, Defendant-Appellant and Counterdefendant (Nancy Sprowls et al., Plaintiffs; Robert Troost, Indiv. and d/b/a Riverhill Memorial Park, Defendant and Counterplaintiff)." ], "opinions": [ { "text": "PRESIDING .JUSTICE LINDBERG\ndelivered the opinion of the court:\nDefendant, B. D. Smith, individually and d/b/a Wirtz-Roche-Smith Funeral Home, appeals from a judgment of the circuit court of De Kalb County following a jury trial awarding plaintiff, Maureen Von Seggren, $50,000 damages for breach of contract. The case arose out of the handling of the cremains (cremated remains) of plaintiff\u2019s mother by defendant, with plaintiff contending, and defendant denying, that defendant returned to plaintiff\u2019s family the cremains of someone (Edith Holderness Willey) other than her mother (Earlene Kempson). Defendant raises two issues on appeal, contending (1) that the trial court erred in admitting into evidence testimony about defendant\u2019s handling of the remains of someone other than plaintiff\u2019s mother and (2) that the jury\u2019s verdict was excessive. We affirm.\nDefendant first argues that the trial court erroneously permitted testimony from four witnesses \u2014 Warren Willey, Edith Willey (Warren\u2019s wife), Peter Wolters, and John Hammes \u2014 concerning defendant\u2019s handling of the cremains of Mr. Willey\u2019s grandfather and grandmother (Edith Holderness Willey). Defendant maintains that \u201c[tjhis testimony was totally irrelevant and immaterial to the issue presented, and its injection into the lawsuit highly prejudicial.\u201d The issue raised was not properly preserved and so has been waived.\nThe testimony of the Willeys was about their dealings with defendant regarding the disposition of the remains of Mr. Willey\u2019s grandparents. Wolters and Hammes were associated with the Oak-wood Cemetery, and their testimony concerned whether the cemetery association had been paid a fee for burying the cremains of Mr. Willey\u2019s grandparents, whether Hammes as cemetery sexton had buried those cremains, and whether the cemetery\u2019s records showed a burial for the Willeys.\nThe testimony of Wolters and Hammes was not objected to before, during, or after trial. Defendant\u2019s claim that the testimony of these two witnesses should not have been admitted has accordingly been waived. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01, 475 N.E.2d 872, 879.\nInsofar as the issue concerns the testimony of Warren and Edith Willey, it is necessary to determine what was raised in the trial court by way of contemporaneous objection and post-trial motion. To be preserved, the issue raised must have been specifically raised both by timely objection at trial and in defendant\u2019s post-trial motion. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1028, 1029-30; Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 969, 973, 242 N.E.2d 1279, 1284, 1286-87.\nThe relevant allegations of defendant\u2019s post-trial motion were:\n\u201c8. The Court erred in refusing to grant defendant\u2019s Motion In Limine which is in words and figures as follows;\n*** that the parties be instructed not to inform the jury at any time during trial any of the following:\n1. The Willey family\u2019s dissatisfaction with Mr. B. D. Smith\u2019s handling of the cremains of Mr. and Mrs. Willey.\n2 * * *\n9. The Court erred in allowing plaintiff\u2019s counsel to question Edith Willey or Warren Willey about their dissatisfaction with Mr. B. D. Smith\u2019s handling of the cremated remains of Mr. Willey\u2019s ancestors.\n10. The questioning of the Willeys did nothing but inflame the passion and prejudice of the jury.\u201d\nIn these allegations of defendant\u2019s post-trial motion, he preserved only a claim that testimony by the Willeys about their dissatisfaction with defendant\u2019s handling of the cremains of Warren Willey\u2019s grandparents should not have been admitted and not the broader contention made on appeal that testimony concerning the handling of the cremains should not have been admitted. To the extent the issue raised on appeal is broader than that raised in the post-trial motion, it has been waived.\nMoreover, at no time during the testimony of Warren and Edith Willey did defendant ever object to testimony that the Willeys were dissatisfied with defendant\u2019s handling of Mr. Willey\u2019s grandparents' cremains. In fact, defendant objected only once during their testimony and then it was to a question of Edith about the handling of the cremains and not about dissatisfaction with that handling. Therefore, because no contemporaneous objection was made to any testimony about dissatisfaction with defendant\u2019s handling of the cremains, the issue raised in the post-trial motion was also waived. There is accordingly no portion of the first issue raised by defendant on appeal which has been properly preserved for review, so we decline to consider it.\nWe would note that plaintiff\u2019s theory of the case was that defendant had given her a canister containing the cremains of Edith Holderness Willey (Warren Willey\u2019s grandmother) instead of the cremains of plaintiff's mother, Ear lene Kemp son, which had been buried in a common grave at Riverhill Memorial Park. Defendant\u2019s theory of the case was that he had his son transfer Mrs. Willey\u2019s cremains into a canister already containing her husband\u2019s cremains, had then had his son transfer Mrs. Kempson\u2019s cremains into the canister formerly occupied by Mrs. Willey\u2019s cremains, and had given plaintiff\u2019s family this canister containing the cremains of their mother. Given these conflicting theories of the case, and the other factual disputes in the case, it is apparent that much, if not all, of the evidence concerning the handling and disposition of the Willey cremains was not only relevant, but of great value to the triers of fact in ascertaining what had actually occurred. Therefore, although we do not decide the issue raised because it was waived, it seems unlikely that it would have been erroneous for the trial court to admit testimony of the sort defendant complains of on appeal.\nDefendant\u2019s second issue involves the amount of the verdict. The issue raised is a limited one. Defendant does not challenge the availability of damages for mental anguish for a breach of contract. We express here no view on that matter. (See Courtney v. St. Joseph\u2019s Hospital (1986), 149 Ill. App. 3d 397, 500 N.E.2d 703 (\u201cIllinois does not recognize a cause of action for emotional distress arising from the negligent mishandling of a corpse\u201d); Maere v. Churchill (1983), 116 Ill. App. 3d 939, 944, 452 N.E.2d 694, 697 (damages for breach of contract will not be given for mental suffering, except where breach was wanton or reckless and caused bodily harm or where defendant had reason to know, when contract was made, that its breach would cause mental suffering for reasons other than mere pecuniary loss).) Rather, defendant contends that the verdict of $50,000 is excessive and requests a remittitur to $5,000.\nThe evidence of plaintiff\u2019s damages came entirely from the testimony of plaintiff and her husband. Although plaintiff consulted with her pastor, she never saw a doctor, psychiatrist, psychologist, or counsellor about her mental anguish over what had happened to her mother\u2019s cremains. With respect to this matter, plaintiff summarizes the evidence as follows:\n\u201cThe Plaintiff and her husband testified that when the Plaintiff learned she had been given the wrong person\u2019s ashes, she was shocked, stunned, extremely upset and couldn\u2019t believe what she was seeing. [Record citation.] The Plaintiff spent most of the trip home from Indiana on the following day lying in the back seat of the car crying. She was very concerned about recovering her mother\u2019s ashes. [Record citation.]\n*** [T]he fact that the Plaintiff was unable to carry out her parent\u2019s wishes has been a source of grief to her for five years. It still upsets her a great deal. [Record citation.] *** [T]he Plaintiff must relive this upsetting experience every time she sees white ashes or her father\u2019s favorite wild flower. Instead of it being a pleasant memory, it is a source of grief. She is also reminded of her grief on Mother\u2019s Days and birthdays. [Record citation.]\nPhysically, the Plaintiff has experienced a loss of appetite and has had difficulty sleeping. Many times she lies awake at night thinking about what has happened. When she dwells on these thoughts she often gets headaches for which she takes aspirin. [Record citation.]\nFor a long time, the Plaintiff could not talk about the situation without crying. The Plaintiff\u2019s husband testified that his wife\u2019s entire outlook on life has changed and she did not seem to care about anything.\u201d\nCaution is appropriate in approaching the issue raised since, in the determination of the amount of damages necessary to compensate a plaintiff for a particular mental or emotional trauma, there are no firm guidelines. However, this does not mean that we should not review the jury\u2019s award. (See House v. Stocker (1975), 34 Ill. App. 3d 740, 745-46, 340 N.E.2d 563, 567.) We will overturn the verdict of a jury if\n\u201cthe award is so excessive as to indicate that the jury was moved by passion or prejudice [citation], or *** [if] the amount of the verdict does not fall within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. [Citation.]\u201d (Mote v. Montgomery Ward & Co. (1984), 125 Ill. App. 3d 839, 847, 466 N.E.2d 593, 598.)\nThese necessarily vague standards are all we have to guide us in deciding this issue since the facts of the case at bar with respect to damages differ significantly from those of the cases the parties have cited as similar in their arguments.\nWe are not persuaded by defendant\u2019s speculation that the award resulted from the jury\u2019s consideration of prejudicial evidence, since that evidence, as we noted earlier, was relevant to the issues in the case and since it is impossible to know what the jury found persuasive when it decided to award $50,000. On the facts of this case, the $50,000 verdict is not so excessive as to indicate that the jury was moved by passion or prejudice, falls within the flexible limits of fair and reasonable compensation, and is not so large that it shocks our judicial conscience. The verdict was therefore not excessive.\nThe judgment of the circuit court of De Kalb County is affirmed.\nAffirmed.\nNASH and HOPE, JJ., concur.", "type": "majority", "author": "PRESIDING .JUSTICE LINDBERG" } ], "attorneys": [ "Robert M. Hansen and T. Donald Henson, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for appellant.", "Mark A. Schindler and Peter F. Ferracuti, both of Peter F. Farracuti, P.C., of Ottawa, for appellee." ], "corrections": "", "head_matter": "MAUREEN VON SEGGREN, Plaintiff-Appellee, v. B. D. SMITH, Indiv. and d/b/a Wirtz-Roche-Smith Funeral Home, Defendant-Appellant and Counterdefendant (Nancy Sprowls et al., Plaintiffs; Robert Troost, Indiv. and d/b/a Riverhill Memorial Park, Defendant and Counterplaintiff).\nSecond District\nNo. 2-85-0797\nOpinion filed January 13, 1987.\nRobert M. Hansen and T. Donald Henson, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for appellant.\nMark A. Schindler and Peter F. Ferracuti, both of Peter F. Farracuti, P.C., of Ottawa, for appellee." }, "file_name": "0813-01", "first_page_order": 835, "last_page_order": 840 }