{ "id": 5579828, "name": "DANIEL GREENOCK, Adm'r of the Estate of Mary Greenock, Deceased, Plaintiff-Appellant, v. DR. F. MERKEL, Defendant-Appellee", "name_abbreviation": "Greenock v. Merkel", "decision_date": "1979-04-25", "docket_number": "No. 78-524", "first_page": "958", "last_page": "963", "citations": [ { "type": "official", "cite": "71 Ill. App. 3d 958" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 N.E.2d 816", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "320 Ill. App. 522", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4977363 ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0522-01" ] }, { "cite": "25 N.E.2d 582", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "303 Ill. App. 516", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3345860 ], "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-app/303/0516-01" ] }, { "cite": "93 S. Ct. 1901", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1940, "opinion_index": 0 }, { "cite": "36 L. Ed. 2d 392", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1940, "opinion_index": 0 }, { "cite": "411 U.S. 932", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9793, 10202, 9892, 10311, 10121, 10252, 10061, 10142, 9946, 9819, 9822 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/us/411/0932-02", "/us/411/0932-08", "/us/411/0932-07", "/us/411/0932-03", "/us/411/0932-05", "/us/411/0932-09", "/us/411/0932-04", "/us/411/0932-01", "/us/411/0932-06", "/us/411/0932-10", "/us/411/0932-11" ] }, { "cite": "283 N.E.2d 913", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 731", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526757 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0731-01" ] }, { "cite": "59 N.E.2d 600", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "189 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5571798 ], "opinion_index": 0, "case_paths": [ "/ill/189/0085-01" ] }, { "cite": "173 N.E.2d 828", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1901, "opinion_index": 0 }, { "cite": "30 Ill. App. 2d 199", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790277 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0199-01" ] }, { "cite": "382 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441565 ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0058-01" ] }, { "cite": "247 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. App. 2d 194", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595878 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0194-01" ] }, { "cite": "382 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328040 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0266-01" ] } ], "analysis": { "cardinality": 638, "char_count": 11026, "ocr_confidence": 0.897, "pagerank": { "raw": 1.1724668852610791e-07, "percentile": 0.5867349795296946 }, "sha256": "e3f99cc7b9ff1d0cd8bbc3deb1067cd3a9e24abed1e7787901cc4ffbe877efaf", "simhash": "1:81da3e91298cde04", "word_count": 1899 }, "last_updated": "2023-07-14T15:52:26.554099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DANIEL GREENOCK, Adm\u2019r of the Estate of Mary Greenock, Deceased, Plaintiff-Appellant, v. DR. F. MERKEL, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SIMON\ndelivered the opinion of the court:\nThis appeal grows out of a medical malpractice action for wrongful death. The plaintiff is the administrator of the estate of the decedent, Mary Greenock, who died following a renal transplant. Defendants were the doctor and the hospital. Both defendants pleaded the bar of the statute of limitations. The circuit court judge decided that the action was barred as to the doctor, but allowed it to proceed against the hospital. The hospital appealed, and this court reversed, holding that the action against the hospital was also barred. (Greenock v. Rush Presbyterian St. Luke\u2019s Medical Center (1978), 65 Ill. App. 3d 266, 382 N.E.2d 321.) The plaintiff did not appeal the trial judge\u2019s order dismissing the doctor.\nBefore this court\u2019s decision, the plaintiff\u2019s lawyer, in his own name, filed a section 72 petition in the circuit court, seeking to set aside the judgment of dismissal and reopen the case. He alleged that, unknown to the court or himself earlier, the decedent had a minor grandchild (James), who was \u201cpotentially dependent\u201d upon his grandmother; and argued that the minority of this beneficiary of the litigation tolled the statute under the provisions of section 21 of the Limitations Act (Ill. Rev. Stat., 1976 Supp., ch. 83, par. 22). The court denied the petition, and this appeal follows.\nThe section 72 petition in this case is highly irregular. It alleges a fact, not known to the court when judgment was entered, which, if known, might have prevented entry of that judgment. But, such a petition must also normally allege that the fact was not earlier known to the moving party. The newly brought forth minor in this case is the plaintiff\u2019s nephew, and obviously plaintiff knew of him all along. The petition was able to recite novelty only because it was signed by plaintiff\u2019s counsel, rather than plaintiff himself. Counsel informs us that the plaintiff was not available at the time to file the petition; but this procedure is nevertheless itself irregular, and, so far as we can discover, impermissible. (Frandsen v. Anderson (1969), 108 Ill. App. 2d 194, 247 N.E.2d 183.) The only excuse counsel has offered for not having discovered James and argued his case at the proper time is the unpersuasive one that \u201cit didn\u2019t seem important.\u201d\nBefore we too casually reject the petition, however, it must be reexamined in the light of this State\u2019s policy that the courts must protect the interests of minors. If the plaintiff had never brought this action, James\u2019 minority would have tolled the statute, and he would later have been able to cause the plaintiff, as the administrator of the decedent\u2019s estate, to bring suit on his behalf. (Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784; see also Ill. Rev. Stat. 1977, ch. 70, par. 2.) It would be anomalous to conclude that a minor\u2019s interests will be protected, as a matter of course, if the administrator promptly brings suit, or if he does not bring suit at all, but will be unprotected if the administrator files an otherwise untimely action, and neglects to mention the minor.\nA wrongful death action is brought by the administrator on behalf of all the beneficiaries; and we do not say that if the administrator simply does a poor job trying the case he has instituted, each minor may have another bite at the cherry. That would be unfair to the defendant. But here, James has never had a day in court. There has never been a trial on the merits.\nWe elect to treat the petition as having been filed on behalf of James, or in his interest. If he is a beneficial party in interest in the case, he was injured by the judgment, and will benefit by its being set aside. He, by his next friend, is therefore a proper person to file such a petition (Frandsen); and there is no reason not to allow the administrator, charged generally with the conduct of the suit, to file the petition to protect the interest of a minor who may benefit from it.\nThe petition, generously read, suggests the existence of a minor beneficiary \u2014 a fact not known to the court when judgment was entered, which, had it been known, would have defeated the statute of limitations defense. To correct such an injustice is one of the regular uses of a section 72 petition. Viewed as filed on behalf of James, or in his interest, the petition need not allege that the administrator did not earlier know of James\u2019 existence. The normal requirement that the petitioner must not earlier have known of the \u201cnew\u201d fact derives from the principle that a section 72 petition is not to be used to relieve a person of the consequences of his own negligence or lack of diligence; but James cannot be charged with any negligence or lack of diligence so as to defeat a section 72 petition. In Rom v. Gephart (1961), 30 Ill. App. 2d 199, 173 N.E.2d 828, this court decided that even where a guardian ad litem had been appointed, a minor could obtain relief from a judgment if the guardian had sat idly by and done nothing. In Consolidated Coal Co. v. Oeltjen (1901), 189 Ill. 85, 59 N.E.2d 600, the plaintiff had brought a suit and hired an attorney, and later, by the attorney, caused the suit to be dismissed. His conservator\u2019s petition to vacate the dismissal on the ground that he was insane at the time was allowed. These cases demonstrate the solicitude of the courts for those under a legal disability, even where someone else might or should have protected their interests.\nThis attitude is logical, for the rule that one is bound by a judgment suffered as a result of one\u2019s own neglect or mistake is clearly not designed to do justice in each particular case, but rather to protect the finality of judgments. This desire for certainty and stability resembles what a limitations statute is designed to accomplish, but the limitations statute yields to the rights of infants.\nIn view of Wilbon, we decline to impute the administrator\u2019s negligence to James, or to deny James relief because of his uncle\u2019s fault. A petition under section 72 is to be considered in the light of equitable principles. (Franklin v. Wellco Co. (1972), 5 Ill. App. 3d 731, 283 N.E.2d 913, cert. denied (1973), 411 U.S. 932, 36 L. Ed. 2d 392, 93 S. Ct. 1901.) In Nikola v. Campus Towers Apartment Building Corp. (1940), 303 Ill. App. 516, 525, 25 N.E.2d 582, the court said:\n\u201cThe courts of Illinois 0 0 0 have encouraged the development of its statutory equivalent [section 72] and permitted its use in new situations whenever such was consonant with the history of its common law antecedent. The expansion 0 0 0 can be traced to the tendency of the courts of law to apply equitable principles wherever necessary to prevent injustice.\u201d\nJames cannot himself bring a wrongful death action; only the administrator, acting on his behalf, can do that. James\u2019 only possible remedy is a section 72 motion to reopen the judgment. It would be unjust to bar a minor from the courts for someone else\u2019s technical oversight. We hold that, as a minor without a guardian ad litem, interested in the suit though neither formally a party to it nor legally responsible for prosecuting it, James is entitled to relief from the judgment if he can plead and prove decisive facts unknown to the court previously. This is so even if those facts were known to the administrator.\nSo far we have assumed that the fact of James\u2019 minority would have prevented the judgment dismissing the wrongful death action on the grounds of the statute of limitations. But James\u2019 minority is material only if he is a beneficiary of the action. Otherwise, in fact, no one could bring the section 72 petition even in his behalf.\nWrongful death recoveries are for the benefit of the surviving spouse and \u201cnext of kin.\u201d (Ill. Rev. Stat. 1973, ch. 70, par. 2.) The mere fact that James might, if his grandmother had lived, have benefited from her generosity or her feelings of obligation, does not entitle him to recover on account of her death. Creditors, for example, can have no share in a wrongful death recovery (In re Estate of Shields (1943), 320 Ill. App. 522, 51 N.E.2d 816), though it must be presumed that the deceased, as an honest woman, would have paid her debts had she lived long enough. Similarly, the deceased person\u2019s will has no effect upon the distribution of a wrongful death recovery. Under the statute, James can have an interest in this action only if he is among the next of kin. The petition fails to allege such a relationship; instead, it states that James is Mary\u2019s grandson. That is not the same thing. In particular, James clearly cannot be next of kin if his mother, the decedent\u2019s daughter, was alive when the decedent died.\nMoreover, since wrongful death recoveries are distributed among the spouse and next of kin in proportion to their dependence on the decedent, only those who are in some degree dependent can recover. The petition, however, alleges only that James was \u201cpotentially dependent,\u201d which does not suffice.\nClearly, then, the bare facts that James is Mary\u2019s grandson, and was \u201cpotentially dependent\u201d upon his grandmother, would not, even if known to the court, have prevented entry of the judgment. The petition as drafted was inadequate, and was therefore properly denied.\nWe believe, however, that because James is a minor, leave should be given to amend the petition on his behalf. The defendant has received adequate notice of the issues raised by the petition. In any event, because the statute of limitations for section 72 petitions is itself tolled by James\u2019 legal disability (Ill. Rev. Stat., 1976 Supp., ch. 110, par. 72(3)), he could probably even now file a new petition. In the interest of judicial economy, we elect to remand, to give the person acting on James\u2019 behalf the opportunity to file a sufficient petition, if he is able to do so.\nWe leave to the circuit court any other issues that may arise if plaintiff files an amended petition without the flaws we have noted. However, we wish to make clear that our decision in no way aids the adult relatives. They, and claims for their losses, remain barred by the statute of limitations. The administrator cannot recover more than James\u2019 own loss, and the recovery will all go to James. His loss, of course, is to be computed by the formula of the wrongful death act, involving the percentages of dependency of James and the other relatives.\nThe order denying the petition is vacated to allow petitioner to amend his petition, and the case is remanded for further proceedings consistent with this opinion.\nOrder vacated and cause remanded.\nMcGILLICUDDY and RIZZI, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SIMON" } ], "attorneys": [ "Robert F. Lisco, of Lisco and Field, of Chicago (Sidney Z. Karasik, of counsel), for appellant.", "Lord, Bissell & Brook, of Chicago (Williams P. Dorr & Hugh C. Griffin, of counsel), for appellee." ], "corrections": "", "head_matter": "DANIEL GREENOCK, Adm\u2019r of the Estate of Mary Greenock, Deceased, Plaintiff-Appellant, v. DR. F. MERKEL, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 78-524\nOpinion filed April 25, 1979.\nRobert F. Lisco, of Lisco and Field, of Chicago (Sidney Z. Karasik, of counsel), for appellant.\nLord, Bissell & Brook, of Chicago (Williams P. Dorr & Hugh C. Griffin, of counsel), for appellee." }, "file_name": "0958-01", "first_page_order": 980, "last_page_order": 985 }