APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. DUSHER, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
Plaintiffs Rolland L. Bradley, administrator of the estate of Matilda Fox, deceased, and Alice E. Bradley, daughter of the decedent, have appealed directly to this court from a judgment of the circuit court of Winnebago County, dismissing their claims for damages for the unlawful killing of Matilda Fox by her husband, defendant Lawrence Fox, and for the imposition of a constructive trust on property formerly held in joint tenancy by the decedent and defendant Lawrence Fox.
The cause presents the issues of whether the daughter of a woman murdered by her husband can sue the latter for damages under the wrongful death statute, and whether a constructive trust can be imposed upon property formerly held in joint tenancy by a husband and wife where the husband killed his wife and then conveyed the property in trust to the attorney who defended him on the murder charge, as security for attorney's fees.
The operative facts are not in dispute. It appears from the pleadings that Lawrence Fox and Matilda Fox were married on May 6, 1949, and resided near Rockford, in Winnebago County. On April 18, 1950, they purchased with their individual funds the property in controversy, which they held in joint tenancy. Lawrence Fox murdered his wife on September 14, 1954, and three days later conveyed the premises, then valued at $20,000, to his attorney. Fox was convicted of murder on November 26, 1954, and sentenced to the State Penitentiary.
It further appears that at the time of her death, and for many years prior thereto, Matilda Fox had operated a beauty shop, and from those earnings contributed substantially to the support of plaintiff Alice E. Bradley, a daughter by a former marriage. For loss of this support, and for damages for the wrongful death of her mother, proceedings were instituted by plaintiff Alice E. Bradley, and plaintiff Rolland L. Bradley, as administrator of the estate of Matilda Fox. Plaintiffs also sought to establish a trust in the property formerly held in joint tenancy by Lawrence and Matilda Fox, and asserted a further claim for damages for breach of the implied contract between the joint tenants that neither would act to jeopardize the interest of the other.
The circuit court of Winnebago County allowed defendants' motion to dismiss the entire complaint, and rendered judgment against plaintiffs, from which they have appealed directly to this court, since a freehold is involved.
With reference to plaintiffs' claim for damages for the murder of Matilda Fox, this court has determined that under the Wrongful Death Act, (Ill. Rev. Stat. 1953, chap. 70, par. 2,) where a husband unlawfully kills his wife, the administrator of the estate of the wife may maintain an action against the husband, or his estate, for pecuniary loss suffered by the children through the unlawful killing of the mother. (Welch v. Davis, 410 Ill. 130.) This ruling moreover is in accordance with judicial opinion in other jurisdictions. 28 A.L.R.2d 666, and cases cited; Robinson v. Robinson, 188 Ky. 49, 220 S.W. 1074; Deposit Guaranty Bank & Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476.
Defendant Fox argues, however, that since he, as the surviving spouse, was one of the class of beneficiaries under the Wrongful Death Act, his contributory negligence barred the other beneficiaries from recovering from him for his wrongful act. In support thereof defendants cite Hazel v. Hoopeston-Danville Motor Bus Co. 310 Ill. 38, involving an automobile collision where the contributory negligence of the husband precluded him and the children from recovering damages for the death of his wife from a third-party tortfeasor.
The basis of the common law rule barring beneficiaries from recovering where one of the group has been contributorily negligent is that no man may recover for an injury to himself or his property which he himself was a material instrument in causing. (Hazel v. Hoopeston-Danville Motor Bus Co. 310 Ill. 38.) In the instant case, however, defendant Fox was not merely contributorily negligent as in the case cited by defendant, but was the sole wrongdoer, for it was he alone who caused the death of his wife. He cannot sue himself, and is therefore not within the class of beneficiaries entitled to recover under the Wrongful Death Act. To permit defendant Fox, as sole and principal tortfeasor, to plead his felonious conduct as a defense to taint the actions of persons entitled to sue him alone is to pervert the common-law concept of contributory negligence, and use it as a weapon to inflict wrong without peril, which will not be countenanced by this court. Therefore, it is evident that the circuit court erred in denying plaintiffs' claim for damages from defendant Fox for the wrongful death of Matilda Fox.
With reference to the disposition of the property formerly held in joint tenancy by defendant Lawrence Fox and Matilda Fox, plaintiffs claim that a constructive trust should be imposed thereon. They argue that inasmuch as defendant Fox acquired the sole legal title to the property by his felonious act, and since his conveyance to defendant Downey, who had full knowledge of the facts and circumstances, was for the purpose of delaying creditors, it is unconscionable for either of them to retain the beneficial interest, and therefore equity should impose a constructive trust.
Defendants, however, deny that there are any grounds for the imposition of such a constructive trust, and claim the issue has been determined in the case of Welsh v. James, 408 Ill. 18, where the court held that a husband who murdered his wife, while insane, was entitled, as the surviving joint tenant, to the entire property which he had held in joint tenancy with his deceased wife.
In determining whether this case is a binding precedent, this court has the power and the duty under the doctrine of stare decisis to re-examine the authorities and legal concepts invoked in that opinion (Doggett v. North American Life Ins. Co. of Chicago, 396 Ill. 354,) for the doctrine of stare decisis is a salutary but not an inflexible rule furthering the ...