Appeal from the Circuit Court of Peoria county; the Hon.
HOWARD WHITE, Judge, presiding. Judgment affirmed.
JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified October 7, 1959.
On the morning of August 1, 1955 between 7:30 and 8 o'clock, Clete Schultz was driving his Studebaker Farm Truck in a westerly direction on Lancaster Road, a rural black top highway some 15 or 16 miles west of Peoria. At the same time Charles L. Saunders was driving his motorcycle in an easterly direction on the same road. As Mr. Schultz proceeded in his own lane of traffic, he shifted into low gear, reduced the speed of his truck and started to make a left turn. He had proceeded to a point where the front end of his truck was about to enter the gate into his bean field on the south side of the highway and the balance of his truck had cleared about one-half of the east bound traffic lane when the motorcycle, which Mr. Saunders was driving, collided with the rear end of his truck. Mr. Saunders was thrown from his motorcycle and sustained injuries from which, on September 14, 1955, he died.
On November 14, 1956 the instant complaint was filed by Carolyn M. Saunders, widow of Charles L. Saunders to recover for nursing, physicians and surgical service, hospital bills and the amount expended by her for funeral and ambulance services together with $50 paid for a lot in which the remains of the deceased were interred. This complaint alleged, among other things, the marriage of the plaintiff and decedent in 1945 and the continued existence thereafter of said relationship until the husband's death; that their family consisted of themselves and two children and that they lived together as one household or family.
The complaint then averred that the plaintiff was in the exercise of due care and caution for the safety of her property upon the occasion in question and charged defendant with various acts of negligence which occasioned the injuries decedent received. It was charged that his injuries required immediate and extensive medical care and treatment and it was averred that as a direct result of the injuries which her husband received and by virtue of the Family Expense Statute (Ill. Rev. St. 1955 Chap. 68, sec. 15) she became personally liable for the ambulance, hospital, nursing, physicians' and surgeons' services rendered decedent during his lifetime and after the collision and also for his funeral, burial expenses, and coroner's fees. Her complaint demanded judgment for $5,196.65.
The defendant answered admitting many of the allegations of the complaint. Defendant, however, denied all charges of negligence, denied that under the provisions of the Family Expense Statute plaintiff was entitled to recover in this action and as a separate defense defendant averred that decedent, at and before the occurrence in question, was guilty of negligence which proximately and directly contributed to the collision which resulted in decedent's injuries and death. The allegations set forth in this separate defense were denied by plaintiff's reply. The issues made by the pleadings were submitted to a jury resulting in a verdict and judgment in favor of the plaintiff and against the defendant for $4862.90 and costs, from which defendant appeals.
Counsel for appellant state that under our Family Expense Statute a wife may sue and recover from a wrongdoer, money expended by her, for medical expenses and services rendered her husband as a result of non-fatal injuries inflicted upon her husband by such wrongdoer. Counsel further state that it is also clear that if the husband dies from some cause other than the wrongful injury, the cause of action for personal injury to the wife survives and she can continue to maintain her action for her own damages. It is just as clear continue counsel "that where the spouse dies from the wrongful injury complained of, not only his right of action dies with him but also the right of his spouse to recover for damages prior to his death." Counsel insist that the only right of action that subsists is the action of his personal representative to recover the pecuniary loss to his next of kin under the Wrongful Death Act. (Ill. Rev. St. 1955, Chap. 70, sec. 1.)
In 42 A.L.R.2d 843 following the report of Follansbee v. Benzenberg, 122 Cal.App.2d 466, 265 P.2d 183, is an annotation dealing with the right of a wife to recover in her individual capacity for medical expenses of her husband injured by a third person's negligence. The annotator states that the question has arisen in but few cases and that in a majority of them it has been recognized that where the married woman statutes permit a wife to bring an action in her own name, she may recover in her individual capacity from the tort-feasor for medical or hospital expenses for her husband's injuries if she was liable therefor to the physician or hospital or if she had paid such expenses out of her personal estate. (42 A.L.R.2d 843.)
It appeared in Follansbee v. Benzenberg, 122 Cal.App.2d 466, 265 P.2d 183, 43 A.L.R.2d 832, supra, so far as material to the decision in the instant case, that the husband of the plaintiff was riding as a passenger in an automobile driven by the defendant Benzenberg on February 17, 1951. As a result of an intersection collision between the automobile driven by Benzenberg and one driven by one Escobasa, the husband of the plaintiff was rendered unconscious and died nine days later as a result of the injuries he received. The trial court found that because of the injuries her husband received as a result of the collision the plaintiff incurred and paid $1207.55 which was a reasonable sum for ambulance and hospital services, medical care and nursing but that she was not entitled to recover for those items. In reversing that judgment the court held that a wife is legally obligated to pay for such services and having paid for them is entitled to recover from a person whose negligence was a proximate cause of the injury necessitating the services. In the course of its opinion the court quoted from 41 C.J.S. Husband and Wife, sec. 404, p. 901 where it is said: "Where the wife has been compelled to expend money from her personal estate, as a proximate result of injuries negligently inflicted on her husband by a third person, for which he cannot recover, she may recover such sums under statutes giving her the right to sue in her own name."
The Follansbee case quoted extensively from McDaniel v. Trent Mills, 197 N.C. 342, 148 S.E. 440 and Hansen v. Hayes, 175 Ore. 358, 154 P.2d 202 and cited, among other cases, Thompson v. City of Bushnell, 346 Ill. App. 352, 105 N.E.2d 311. Counsel for appellant, in referring to the Thompson case and to another Illinois case, Nixon v. Ludlam 50 Ill. App. 273 state that they "are two isolated and enigmatic appellate court decisions"; that the Nixon case has only been referred to once and that the Thompson case has "never been reviewed, cited or referred to by any reported Illinois decision." Apparently counsel do not agree with what these cases hold and find nothing in either case to support their contention.
The Nixon case, supra was an action by a husband against a surgeon to recover damages for an alleged unskillful operation performed by defendant upon the wife of the plaintiff. The trial court sustained a demurrer to the declaration and dismissed the action on the ground that the declaration stated a case of the instantaneous death of the wife. In reversing that judgment the court called attention to the fact that at common law no civil action could be maintained for the death of a human being caused by the wrongful act or negligence of another; that it is only by virtue of the statute (Ill. Rev. St. Chap. 70, sec. 1) that a civil action may be maintained for damages suffered subsequently to and in consequence of the death which action can only be maintained by the personal representative of the deceased. Continuing the court then said: (pp. 275-276) "The surviving husband, as such can not maintain an action for such damages. He is not, however, debarred either at common law or by the statute, from a recovery of those damages which accrued prior to the death. Indeed his right of recovery for all damages accruing to him before the death is well recognized and his right of action for such damages does not abate by her death. Hyatt v. Adams, supra (16 Mich. 179). Therefore, it appearing by the declaration that the wife survived the operation for the space of about two days, it was error to sustain the demurrer. The right to recover for the loss of her services during the time that she survived the operation, and for any consequent expense he was put to in caring for and treating her during the time she languished, can not be questioned."
In Thompson v. City of Bushnell, 346 Ill. App. 352, the complaint alleged that the husband of plaintiff died on February 23, 1950 as a result of a gas explosion which occurred in their home on July 9, 1948; that the gas mains were owned by the City and that the explosion was caused by the negligence of the City. By two counts of her complaint the widow of decedent sought to recover medical, hospital, nursing and funeral expenses furnished her deceased husband prior to his death. The trial court dismissed these counts of the complaint. In reversing the judgment of the trial court the appellate court of the Third District quoted the applicable section of the statute to the effect that the expenses of the family shall be chargeable upon the property of both husband and wife, or either of them, in favor of creditors therefor and in relation thereto they may be sued jointly or separately. (Ill. Rev. St. Chap. 68, sec. 15.) The court then cited Nixon v. Ludlam, 50 Ill. App. 273 and quoted quite extensively from Hansen v. Hayes, 175 Ore. 358, 154 P.2d 202 and held that the dismissed counts stated a cause of action. While it was held in the Nixon case that there could be no recovery by the husband for funeral expenses incurred by him because his wife died as a result of an alleged unskillful surgical operation performed by defendant, there is authority to the contrary (Mattfeld v. Nester, 226 Minn. 106, 32 N.W.2d 291, 3 A.L.R.2d 909 and cases cited in the annotation following the report of that case in 3 A.L.R.2d 909). The conclusion arrived at in both the Nixon and Thompson cases is not, puzzling, inexplicable, perplexing, mysterious or enigmatic as counsel suggest.
Hansen v. Hayes, 175 Ore. 358, 154 P.2d 202 was an action by the widow of Peter Alfred Hansen to recover medical and funeral expenses incurred by her in connection with the injury and ultimate death of her husband which resulted from the grossly negligent operation, by the defendant, of the automobile in which her husband was riding as a guest passenger of the defendant. The case was tried by the court, without a jury resulting in a judgment in favor of the plaintiff in the amount of medical expenses incurred by her in an effort to save her husband's life. The trial court also rendered a judgment in favor of the defendant against the plaintiff on her claim for funeral expenses. In affirming both judgments, the supreme court of Oregon stated that the legal theory of the plaintiff is that under the Family Expense Statute the plaintiff widow became liable for the medical and funeral expenses furnished her husband and that such liability was tortiously imposed upon her by defendant's negligence which had made the expense necessary. The court then said that while the negligent force of the defendant was directed only at the deceased, it gives rise to tort liability in favor of one who acts to his damage by reason of any injury directly done to another. The court then cited the Oregon family expense statute and held that medical and funeral expenses were classed as expenses of the family within the meaning of the statute and said that similar rulings had been made under the Illinois Statute which is substantially the same as the Oregon statute, citing Leininger v. Thoma, 255 Ill. App. 8; Lifschitz v. Chicago, 194 Ill. App. 488; Walcott v. Hoffman, 30 Ill. App. 77; Younkin v. Essick, 29 Ill. App. 575; Glaubensklee v. Low, 29 Ill. App. 408 and Cole v. Bentley, 26 Ill. App. 260.
The Oregon Court then concluded that by reason of the family expense statute the plaintiff became liable for the amount of her husband's medical and funeral expenses and that the negligence of the defendant was the proximate cause of direct damage to the plaintiff in the amount of such expenses paid by her and that the defendant shall be held to respond in damages on the general principles ...