Dotson v. Sears, Roebuck & Co. , 199 Ill. App. 3d 526 ( 1990 )

199 Ill. App.3d 526 (1990) 557 N.E.2d 392

NEELY DOTSON, Adm'r of the Estate of Ida Dotson, Deceased, Plaintiff-Appellant,
v.
SEARS, ROEBUCK & COMPANY, Defendant-Appellee.

No. 1-88-3157.

Illinois Appellate Court — First District (3rd Division).

Opinion filed May 23, 1990.

Lane & Munday, of Chicago (John J. Munday, of counsel), for appellant.

Arnstein & Lehr, of Chicago (Arthur L. Klein, Patrick F. Geary, and Kurt J. Heinz, of counsel), for appellee.

Judgment affirmed.

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, Neely Dotson, appeals from a judgment entered on a jury award of $450,000 for plaintiff as the administrator of the estate of Ida Dotson upon a retrial of his wrongful death action against defendant, Sears, Roebuck & Company. This is the second appeal in this case. In the first (Dotson I), this court, inter alia, vacated a $1.7 million award to the estate of Ida Dotson. (157 Ill. App.3d 1036, 510 N.E.2d 1208.) The only facts which we need repeat here are that plaintiff and Ida Dotson were husband and wife, that the trial concerned damages only, defendant having admitted liability, and that plaintiff remarried after Ida's death.

• 1, 2 On appeal, plaintiff's sole contention is that the trial court erred in instructing the jury to limit his damages to the loss sustained from the time of Ida's death to the time of his remarriage. Plaintiff asserts that the court should have, instead, instructed the jury that his remarriage did not mitigate his damages for the loss of Ida's material services. We find this appeal to be a totally unsupportable attempt to relitigate an issue litigated in Dotson I and therein clearly and unequivocally decided against plaintiff. Consequently, we affirm the judgment of the trial court.

In bringing this appeal, plaintiff chiefly relies on Watson v. Fischbach (1973), 54 Ill.2d 498, 301 N.E.2d 303. Watson held that, in Illinois, as in the majority of States that had by then considered the question, a surviving spouse's remarriage did not affect the damages recoverable for the wrongful death of the deceased spouse. (Watson, 54 Ill.2d at 500.) Plaintiff asserts that Watson required the trial court to give the instruction he requested.

Plaintiff concedes that this court previously decided that: (1) evidence of the quality of plaintiff's marriage to Ida was improperly admitted at trial because plaintiff had withdrawn his claim for loss of consortium; and (2) the jury should have been informed of the remarriage and the identity of his new wife. Tacitly attempting to avoid the doctrine of the law of the case, however, plaintiff asserts that the precise issue of whether remarriage mitigates damages for loss of material services was not previously before this court. In so arguing, we believe that plaintiff has disregarded the issues raised by the parties in the first appeal and this court's decision thereon, as reflected in our prior opinion.

In that appeal, defendant contended that, having withdrawn his claim for loss of consortium, plaintiff was improperly allowed to adduce evidence of the quality of his marriage to Ida. Plaintiff contended that that evidence was properly admitted at trial because the withdrawal of his claim for loss of consortium did not preclude a recovery for the loss of Ida's material services and that evidence was relevant to those services. Dotson, 157 Ill. App.3d at 1043.

In rejecting plaintiff's arguments, this court noted that a spouse's personal services have traditionally been recoverable in wrongful death actions; that notwithstanding Watson, claims for loss of consortium were not recoverable in such actions until Elliott v. Willis (1982), 92 Ill.2d 530, 442 N.E.2d 163; that Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App.3d 431, 474 N.E.2d 458, had held that Elliott had implicitly overruled Watson and that evidence of remarriage was relevant to a claim for loss of consortium because recovery therefor was limited to "actual loss," i.e., "loss up to the time of remarriage" (Carter, 130 Ill. App.3d at 436). We further concluded that, although not specifically so held in Elliott or Carter, material services had always been a component of a claim for loss of consortium. We so concluded on the basis that the appellate court decision which Elliott affirmed and Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, which it cited in defining consortium, both defined consortium as including material services. We also concluded that the recovery for loss of material services allowed in wrongful death actions prior to Elliott had been a necessary departure from this general rule. Lastly, we concluded "that Elliott mandates a finding that material services are now recoverable in wrongful death actions only as part of a loss of consortium claim." Dotson, 157 Ill. App.3d at 1043-44.

Defendant next argued that, having improperly allowed plaintiff to separate and pursue a claim for lost services from his withdrawn claim for loss of consortium, the trial court further erred in excluding evidence of plaintiff's remarriage. Plaintiff responded, inter alia, that Carter held evidence of remarriage relevant only to a claim for loss of consortium which did not include material services. Dotson, 157 Ill. App.3d at 1044-45.

This court rejected plaintiff's attempt to distinguish Carter. Specifically, we held evidence of remarriage properly admissible to limit his recovery for lost material services to actual loss, relying upon Carter. That holding was based on our disagreement with plaintiff that the claim for loss of consortium recognized in Elliott, and as to which remarriage was held relevant in Carter, did not include material services. Dotson, 157 Ill. App.3d at 1045.

Dotson I thus clearly reveals that, contrary to plaintiff's assertion, the issue whether remarriage mitigates damages for loss of material services was previously before this court. Specifically, it was put in issue by plaintiff's argument, in defending the exclusion of evidence of his remarriage, that Carter held evidence of remarriage relevant only to a claim for loss of consortium not including material services. Given our conclusion that, after Elliott, material services are recoverable only as part of a loss of consortium claim, it necessarily followed that Carter's holding had to be applied to claims for lost material services.

This holding, upon a question of law, constituted the law of the case binding both the trial court upon remand and this court upon a subsequent appeal and precluding a relitigation of the issue on the merits. (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1984), 127 Ill. App.3d 589, 469 N.E.2d 389.) The only question we can consider in this appeal is whether the trial court followed our mandate. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App.3d 967, 326 N.E.2d 773.) It is obvious from the very fact of this appeal that it did.

• 3 However, even if we consider plaintiff's arguments on the merits, we reject them.

Again attempting to distinguish Carter, plaintiff argues that at the time it was decided no court had held that loss of material services was a component of a loss of consortium claim. As such, plaintiff asserts, "Carter did not [i.e., could not] hold that remarriage mitigates damages for loss of services." Moreover, plaintiff argues that this court's conclusion that loss of services is a component of consortium cannot change the pronouncements of the supreme court in Watson and Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill.2d 591, 294 N.E.2d 689, that remarriage does not mitigate loss of services as an element of damages in a wrongful death action.

Preliminarily, we must disagree with plaintiff that, prior to Carter, it had not been held that lost material services were a component of a loss of consortium claim. The seminal case so holding and oft-cited for that very proposition is Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881. (See also Dralle v. Ruder (1988), 124 Ill.2d 61, 529 N.E.2d 209; Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App.3d 140, 509 N.E.2d 1295; Pease v. Ace Hardware Home Center (1986), 147 Ill. App.3d 546, 498 N.E.2d 343; Countryman v. County of Winnebago (1985), 135 Ill. App.3d 384, 481 N.E.2d 1255; Brown v. Metzger (1983), 118 Ill. App.3d 855, 455 N.E.2d 834, aff'd (1984), 104 Ill.2d 30, 470 N.E.2d 302; Martin v. Kiendl Construction Co. (1982), 108 Ill. App.3d 468, 438 N.E.2d 1187; Coulter v. Renshaw (1981), 94 Ill. App.3d 93, 418 N.E.2d 489; Sostock v. Reiss (1980), 92 Ill. App.3d 200, 415 N.E.2d 1094; Wood v. Mobil Chemical Co. (1977), 50 Ill. App.3d 465, 365 N.E.2d 1087.) Moreover, Dini noted that the elements of consortium are "welded into a conceptualistic unity." It also noted that it was "but a theoretician's boast" that consortium was "capable of dismemberment into material services and sentimental services." (Dini v. Naiditch (1960), 20 Ill.2d 406, 427-28, 170 N.E.2d 881.) In addition to Dini, we find most instructive of the fallacy of plaintiff's position Martin v. Kiendl Construction Co. (1982), 108 Ill. App.3d 468, 471, 438 N.E.2d 1187, which noted that "[t]he English common law recognized a loss of consortium action in the husband for loss of his * * * wife's services."

We must also note that plaintiff has misconstrued the holding in Mulvey. Mulvey did not hold that remarriage was irrelevant to damages in a wrongful death case. While Watson did so hold, plaintiff presents no cogent argument for this court to reconsider its prior agreement with Carter that Elliott had implicitly overruled Watson. In fact, plaintiff does not even address that aspect of Carter.

Elliott held that loss of consortium was recoverable in wrongful death cases. (Elliott, 92 Ill.2d at 541.) While the Elliott court did not include material services in its definitions of consortium (Elliott, 92 Ill.2d at 535, 541), as we noted in Dotson I, it cited Dini in defining consortium and affirmed an appellate court decision which, like Dini, defined consortium as including such services. More importantly, we find from its discussion of Hall v. Gillins (1958), 13 Ill.2d 26, 147 N.E.2d 352, Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, and Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708, that the inseparability of consortium into its various elements was at the heart of the Elliott court's decision.

In deciding the issue before it, the Elliott court first noted that it had declined to recognize common law actions in tort for the destruction of the family unit (Hall, 13 Ill.2d at 27) and for loss of consortium (Knierim, 22 Ill.2d at 81). The court had done so because the remedies sought in Hall and Knierim were not significantly different from the remedy under the Wrongful Death Act, which allows recovery for "`pecuniary injuries.'" The court noted the reasoning in Hall that the term "`"pecuniary injuries"'" as used in the Wrongful Death Act was broad enough to include most of the items of damage claimed by the plaintiffs therein. (Elliott, 92 Ill.2d at 535.) Those claims were loss of support, companionship, guidance, advice, love and affection. (Hall v. Gillins (1958), 13 Ill.2d 26, 31, 147 N.E.2d 352.) The court also noted that Knierim had extensively relied upon Hall. Elliott, 92 Ill.2d at 536.

The court then rejected the defendants' reliance upon Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708, as supporting the conclusion that "`pecuniary injuries'" under the Wrongful Death Act did not include loss of consortium. Howlett held, inter alia, that the term pecuniary loss or damage, as used to denote the types of injuries compensable under the Wrongful Death Act, was intended "`"to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of * * * society and companionship * * * upon which * * * it is not possible to set a pecuniary valuation."'" The court held, inter alia, that Hall and Knierim had implicitly overruled the Howlett reasoning. Elliott, 92 Ill.2d at 536-37.

The Elliott court's discussion of Hall, Knierim and Howlett indisputably evinces an underlying assumption that consortium is indivisible into its various elements. As such, Elliott, together with Dini and its progeny, conclusively reveal the fallacy of plaintiff's assertion that, prior to Carter, no court had ever held material services to be part of a loss of consortium claim. It unavoidably follows therefrom that, as Carter implies in construing Elliott as overruling Watson, after Elliott remarriage limits a claim for material services as much as it limits any other element of consortium.

In fact, as defendant notes, material services may be the element of consortium to which remarriage is most relevant, such services being more readily replaceable than the intangible elements of consortium such as love, guidance and affection, etc. As such, plaintiff's position is without merit.

For all the foregoing reasons, we affirm the judgment for plaintiff.

Affirmed.

CERDA, P.J., and WHITE, J., concur.