¶1concurring in part, and dissenting in part:
¶2I dissent from this opinion insofar as it determines that the trial court erred in giving and denying instructions relating to loss of society or consortium as an element of damages and from the remandment for a new trial upon damages only. I concur in the opinion upon the other issues considered.
¶3The majority opinion complains that the cited Hall v. Gillins, Dini v. Naditch, and Knierim v.Izzo have implied, or have invited, a holding that loss of society or consortium are compensible under the Wrongful Death Act, yet have never so expressly held. It would seem logical to conclude that if the supreme court believed such intangibles to be compensible it would have simply said so.
¶4It is not quite precise to state “The purpose of the wrongful death statute is to compensate a family, as plaintiffs, for the injury done to them by the actions causing the death of their family member.” The Act is stated in the language “just compensation with reference to the pecuniary injuries … °InHoweltt v. Doglio (1949), 402 Ill. 311, 83N.E.2d 708, the court, in distinguishing the damages under the Dramshop Act from the damages provided in the Wrongful Death Act, said:
“As pointedly observed in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, ‘A pecuniary loss or damage must be one which can be measured by some standard. It is a term employed judicially, “not 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.” ’ ” 402 Ill. 311, 317, 83 N.E.2d 708, 712.
¶5With somewhat less particularity, the same limitation of quality is reiterated in Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.
¶6It appears that the language of the Act specifying “pecuniary injury” was the language of the original act adopted in 1853 and that such terminology has never been modified by the legislature. The limitations of the term “pecuniary injury” have involved the case law since the adoption of the Act, and the exclusion of all loss of decedent’s society as an element of damage to the surviving spouse in Illinois Pattern Jury Instructions, Civil, No. 31.07 (2d ed. 1971) is the product of such case law.
¶7In Knierim v. Izzo (1961), 22 Ill. 2d 73,174 N.E.2d 157, the court stated a rationale in companion context which is relevant here. Count VI of the Knierim complaint alleged mental anguish as an element of injury under the Dramshop Act. Sustaining the trial court’s dismissal of that count, the opinion stated:
“This court at an early date held that mental anguish, disgrace, and loss of society do not constitute an injury to person within the meaning of the act. (Albrecht v. Walker, 73 Ill. 69; Freese v. Trip 70 Ill. 496), and this appears to be the rule in other States with similar statutes. (Annot. 6 A.L.R. 2d 798.) If we were to hold that mental disturbance now constitutes an injury to person, we would be doing what the legislature has not seen fit to do in the numerous amendments to the act since 1874 when the Freese decision was rendered. This court cannot, under the guise of statutory construction, enlarge the classification of actionable injuries under the act. (Howlett v. Doglio, 402 Ill. 311.) The count in question was properly dismissed.” (22 Ill. 2d 73, 80, 174 N.E.2d 157,161.)
¶8Such rationale cannot be disregarded upon the issue here presented.
¶9It is an appropriate judicial assumption that the legislature is aware of the several decisions accepted by the majority as implying that the elements of damage be stated in an action for wrongful death should be enlarged to include loss of society or consortium. Hall v. Gillins was decided in 1958, Knierim v. Izzo was decided in 1961. Section 2 of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 2) has been amended at virtually each subsequent session of the legislature, yet no amendment to enlarge the scope or modify the specification of “pecuniary injury” has been undertaken by that body.
¶10It is said that since the opinion in Dini v. Naiditch permits recovery for loss of society or consortium when one spouse is injured, there should also be the additional element of damage implied when a spouse is killed. The proposition disregards the fact that where a spouse is injured no other action is provided for loss of services suffered by the spouse of the injured person. In instances of death, the surviving spouse has the statutory action for pecuniary injury which the courts, in Hall v. Gillins and Knierim v. Izzo, have said have little significant difference from the damages sought here.
¶11The majority opinion undertakes to denigrate the meaning of “pecuniary injury” by references to Flynn v. Vancil and Baird v. Chicago, Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413, in saying that as to the death of minors those cases permit evidence of health and mental ability of minors and in so doing “predicate damages on more intangible and non-financial considerations” than contributions. As clearly stated in Baird, such factors are deemed evidence necessary to support a rebuttable presumption of pecuniary loss which cannot then be established with evidence of industry and thrift. Such evidence of good quality in the minors is treated as evidence relevant to pecuniary injury and not as an additional basis or element for damages. Similarly, where an adult leaves minor children, IPI Civil No. 31.04 (2d ed. 1971), treats evidence of a parent’s “instruction, moral training and superintendence of education” as evidence of the “services” which might reasonably be expected to be received by the surviving minor.
¶12The opinion of In re Estate of Griffy (1978), 64 Ill. App. 3d 504, 381 N.E.2d 755, which speaks to dependency as the measure of the distribution of damages awarded, reinforces the requirements found in the statute that the factors of damage to be considered by the jury must be of a pecuniary quality.
¶13While the executors presently argue that the jury award of damages was inadequate in the light of the presumption of substantial damages to the widow and next of kin, that issue was not preserved in their post-trial motion.
¶14For the reasons stated, I would affirm the judgment of the trial court.