The opinion
Mr. JUSTICE NASH, dissenting:
I respectfully dissent. This was a wrongful death action brought by the administrator of decedent’s estate on behalf of decedent’s parents and five brothers and sisters (Ill. Rev. Stat. 1969, ch. 70, par. 2). The jury was correctly instructed that contributory negligence on the part of decedent would bar all recovery, but it was also instructed at the request of defendants, over plaintiff’s objection, that contributory negligence on the part of decedent’s parents would also bar all recovery. That, of course, is not the law and I cannot agree with the determination of the majority that the giving of instructions regarding contributory negligence of the parents was proper in this case.
Contributory negligence of decedent’s parents, or of any other person entitled to share in an award made under the act, does not relate to the liability of a defendant at all; if present, it would only preclude the negligent relative from sharing in an award. Negligence of the relative cannot be imputed to a decedent and cannot be interposed by a defendant as contributory negligence barring recovery by an estate under the Wrongful Death Act. (Sheley v. Guy (1975), 29 Ill. App. 3d 361, 366 , 330 N.E.2d 567, 571 , aff'd (1976), 63 Ill. 2d 544 , 348 N.E.2d 835 ; Duffy v. Cortesi (1954), 2 Ill. 2d 511 , 119 N.E.2d 241 ; Rahn v. Beurskens (1966), 66 Ill. App. 2d 423 , 213 N.E.2d 301 .) As has been provided by section 2 of the Wrongful Death Act, since the 1955 amendments,
0 9 it shall not be a defense that the death was caused in whole or in part by the contributory negligence of one or more of the beneficiaries on behalf of whom the action is brought, but the amount of damages given shall not include any compensation with reference to the pecuniary injuries resulting from such death, to such contributorily negligent person or persons, and such contributorily negligent person or persons shall not share in any amount recovered in such action.” (Ill. Rev. Stat. 1969, ch. 70, par. 2.)
IPI Civil No. 31.08 (Illinois Pattern Jury Instructions, Civil, No. 31.08 (2d ed. 1971)) is the only correct instruction, then, which may be given on this issue.
At the conference on instructions, plaintiff submitted an issue instruction which, correctly, made no reference to contributory negligence of decedent’s parents. Defendants objected, however, and the trial court required plaintiff to resubmit the instruction with the added provision that plaintiff had the burden of proving the parents were exercising ordinary care for the decedent’s safety at the time of his death. The court commented that that form was necessary as “they are the beneficiaries,” but did not refer to decedent’s brothers and sisters. Defendants thereupon submitted, and the trial court gave, instructions that contributory negligence of the parents barred all recovery. Plaintiff objected to the instructions as being without support in the evidence. A substantial portion of defendants’ argument to the jury was directed to pointing out that it is the law that any negligence of the parents, however slight, must bar recovery.
The record does not disclose to us what authority was submitted to convince the trial court that negligence of a parent would be imputed to the decedent. In their brief, however, defendants cite Henry v. Robert Kettell Construction Corp. (2d Dist. 1967), 82 Ill. App. 2d 420 , 226 N.E.2d 89 , as authority for the proposition that contributory negligence of a parent will bar all recovery in an action for the wrongful death of a child. The cause of action in Henry arose in 1961; this court held that proximate contributory negligence of the parents would bar all recovery and failed to take into account the 1955 amendment to the Wrongful Death Act referred to earlier. That opinion, and the others cited by defendants in their brief in this court, also refer to pre-1955 cases which state the common law rule in effect at that time that contributory negligence of one beneficiary bars recovery of all beneficiaries. Our supreme court in Nudd v. Matsoukas (1956), 7 Ill. 2d 608 , 131 N.E.2d 525 , recognized the statutory change and all reported cases since 1955, except Henry, have followed it.
It appears to me that the attorneys for plaintiff and defendants and the trial court chose to be guided by Henry, as the last expression of the appellate court in this district, when this case was pleaded and tried. It is obvious they each assumed it correctly expressed the rule.
In this circumstance I do not believe we should perpetuate a mistake by continuing to hold the instructions complained of are proper; they are not. Plaintiff adequately raised this issue in the trial court and should not now be barred from review. The trial court, over plaintiff’s objections, held that any contributory negligence of the parents would bar all recovery and so instructed the jury. We are presented with an issue of law where all facts necessary to its determination are in the record before us; it has been briefed by all parties and is not being raised for the first time on appeal. I would reverse and remand for a new trial.