Chicago Terminal Transfer R. R. Co. v. Helbreg , 1902 Ill. App. LEXIS 450 ( 1902 )

Mr. Justice Shepard

delivered the opinion of the court.

Omitting all consideration of the questions of negligence by the railwaj company or of contributory negligence by the deceased, raised by the record before us, we think the judgment of the Superior Court should be reversed for other reasons shown.

It has been held, from the time of the earliest decisions by our Supreme Court on the statute, until now, that the fact whether the deceased left a widow or next of kin,

' must be alleged in the declaration and proved as alleged. Chicago & Rock Island R. R. v. Morris, 26 Ill. 400; Quincy Coal Company v. Hood, 77 Ill. 68; Lake Shore & M. S. Ry. Co. v. Hessions, 150 Ill. 546; St. Luke’s Hospital v. Foster, 86 Ill. App. 282.

A defect in that respect, in the declaration, was conceded by appellee, who sought to remedy it by filing an amendment after trial and while the motion for a new trial was being heard, which was, by leave of court, allowed. This amendment was properly allowed, the amendment not stating any new cause of action or doing anything but perfecting the declaration so as to enable the plaintiff to recover on the cause already, though imperfectly, stated. Order Mutual Aid v. Paine, 122 Ill. 625.

But the judgment will have to be reversed for another reason. The jury awarded a verdict of $5,000, which the plaintiff remitted down to $1,500, and took judgment for that sum. By the terms of the statute the jury were entitled to award, for the benefit of the wife and next of kin, such damages as they should deem to be a fair and just compensation to them, with reference to the pecuniary injuries resulting to them from such death. Ho other fact than the pecuniary injury can be considéred in assessing the damages. Illinois Central Railroad Co. v. Baches, 55 Ill. 379; Chicago, Peoria and St. Louis R. R. Co. v. Woolridge, 174 Ill. 330.

It is said, in Illinois Central R. R. Company v. Weldon, 52 Ill. 290, and repeated with approval in the Woolridge case, supra, “ Some evidence should be given of the profits of the labor of the deceased (if he was a laboring man), and what he might, in all probability, earn for the future support of his wife and children. In this consists essentially the loss to the family.”

We do not think that, as argued by appellant, the decision in the Woolridge case is intended to limit the recovery of direct or lineal descendants “ to what may be estimated as the probable increase of the estate, had he lived; that is, not how much benefit the beneficiaries might receive from him during his life, but how much he would have accumulated, and which they would have inherited had he died intestate.” If there be found in the opinion in that case expressions appearing to sustain appellant’s understanding of it, we do not think they were so intended.

The deceased was eighty-one years old at the time of the accident. He lived on and cultivated, with the aid of his daughter, a small farm of twenty-seven acres, which he rented. It also appears he was able to do work on the farm, and was active and a “ pretty spry old man.” Sophia E. Schuman, his daughter, was forty-one years old and lived with him, and received her support, food, clothing and shelter from him. Her father gave her money twice, two or three dollars at a time. She also worked on the farm, gave up all her time to keeping up the house and farm, husked corn, dug potatoes, unloaded hay, etc. In fact, although it is not so shown, it is a fair inference, she did as much or more than the deceased about the farm and house.

It is not shown what the deceased usually earned or made out of the farm, except that he always paid his rent promptly. Presumably his earnings or savings, beyond the bare cost of living for himself and daughter, were small, and were not likely to be larger in the few remaining years of his life. Mow, for the jury to award a verdict for the outside limit fixed by the statute, for the pecuniary loss suffered, under such circumstances, is palpably so excessive as to justify the inference that they .were actuated by prejudice or partiality. The trial judge so undoubtedly thought, and required a remittitur of $3,500 to be entered as a condition of not granting a new trial. Had the verdict in the first instance been for $1,500, we would probably not disturb a judgment entered on it.

But the fact that the trial judge required so large a remittitur from the verdict that was given, does not cure the excessiveness of the verdict. Where the verdict is so flagrantly excessive as to be only accounted for on the grounds of prejudice, passion or misconception, a remittitur does not cure it. (Loewenthal v. Streng, 90 Ill. 74.) The excessiveness still clings to the judgment and enters into it, and every part of it. It shows that the prejudice or partiality entered as much into the finding of negligence of appellant and due care of deceased as in the sum that was awarded. A judgment, under such circumstances, for any amount, in effect substitutes the court for the jury, and defeats the statute, which requires that a jury shall fix the compensation at what is fair and just. North Chicago Street R. R. Co. v. Hoffart, 82 Ill. App. 539.

For the reasons stated the judgment is reversed and the cause remanded.