Von Seggren v. Smith

503 N.E.2d 573, 151 Ill. App. 3d 813, 104 Ill. Dec. 858, 1987 Ill. App. LEXIS 1940
CourtAppellate Court of Illinois
DecidedJanuary 13, 1987
Docket2-85-0797
StatusPublished
Cited by11 cases

This text of 503 N.E.2d 573 (Von Seggren v. Smith) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Von Seggren v. Smith, 503 N.E.2d 573, 151 Ill. App. 3d 813, 104 Ill. Dec. 858, 1987 Ill. App. LEXIS 1940 (Ill. Ct. App. 1987).

Opinion

PRESIDING .JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, 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’s mother by defendant, with plaintiff contending, and defendant denying, that defendant returned to plaintiff’s 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’s handling of the remains of someone other than plaintiff’s mother and (2) that the jury’s verdict was excessive. We affirm.

Defendant first argues that the trial court erroneously permitted testimony from four witnesses — Warren Willey, Edith Willey (Warren’s wife), Peter Wolters, and John Hammes — concerning defendant’s handling of the cremains of Mr. Willey’s grandfather and grandmother (Edith Holderness Willey). Defendant maintains that “[tjhis testimony was totally irrelevant and immaterial to the issue presented, and its injection into the lawsuit highly prejudicial.” The issue raised was not properly preserved and so has been waived.

The testimony of the Willeys was about their dealings with defendant regarding the disposition of the remains of Mr. Willey’s 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’s grandparents, whether Hammes as cemetery sexton had buried those cremains, and whether the cemetery’s records showed a burial for the Willeys.

The testimony of Wolters and Hammes was not objected to before, during, or after trial. Defendant’s 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.

Insofar 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’s 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.

The relevant allegations of defendant’s post-trial motion were:

“8. The Court erred in refusing to grant defendant’s Motion In Limine which is in words and figures as follows;
*** that the parties be instructed not to inform the jury at any time during trial any of the following:
1. The Willey family’s dissatisfaction with Mr. B. D. Smith’s handling of the cremains of Mr. and Mrs. Willey.
2 * * *
9. The Court erred in allowing plaintiff’s counsel to question Edith Willey or Warren Willey about their dissatisfaction with Mr. B. D. Smith’s handling of the cremated remains of Mr. Willey’s ancestors.
10. The questioning of the Willeys did nothing but inflame the passion and prejudice of the jury.”

In these allegations of defendant’s post-trial motion, he preserved only a claim that testimony by the Willeys about their dissatisfaction with defendant’s handling of the cremains of Warren Willey’s 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.

Moreover, at no time during the testimony of Warren and Edith Willey did defendant ever object to testimony that the Willeys were dissatisfied with defendant’s handling of Mr. Willey’s 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’s 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.

We would note that plaintiff’s theory of the case was that defendant had given her a canister containing the cremains of Edith Holderness Willey (Warren Willey’s 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’s theory of the case was that he had his son transfer Mrs. Willey’s cremains into a canister already containing her husband’s cremains, had then had his son transfer Mrs. Kempson’s cremains into the canister formerly occupied by Mrs. Willey’s cremains, and had given plaintiff’s 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.

Defendant’s 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’s Hospital (1986), 149 Ill. App. 3d 397, 500 N.E.2d 703 (“Illinois does not recognize a cause of action for emotional distress arising from the negligent mishandling of a corpse”); 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.

The evidence of plaintiff’s damages came entirely from the testimony of plaintiff and her husband.

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Cite This Page — Counsel Stack

Bluebook (online)
503 N.E.2d 573, 151 Ill. App. 3d 813, 104 Ill. Dec. 858, 1987 Ill. App. LEXIS 1940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/von-seggren-v-smith-illappct-1987.