APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of Peoria
County; the Hon. HOWARD WHITE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Plaintiff, Caroline M. Saunders, instituted an action to recover the amount of certain medical and funeral expenses for which she became liable under the family expense provisions of the Married Women's Act as a result of the injury and ensuing death of her husband, Charles L. Saunders, in a vehicle collision allegedly caused by the negligence of defendant Clete Schultz. The judgment of the trial court, entered on the jury verdict awarding plaintiff damages in the amount of $4,862.90, was affirmed by the Appellate Court, (22 Ill. App.2d 402,) and we have allowed defendant leave to appeal.
The salient issue presented on this appeal is whether the widow may maintain an independent action against the tortfeasor causing the wrongful death of her husband for the medical and funeral expenses for which she is liable under the Married Women's Act. Other questions involved in this review of the cause are whether the essential elements for such action were properly averred herein, and whether the trial court erred in sustaining plaintiff's objections to certain interrogatories, or in giving certain instructions.
From the record it appears that at about 7 A.M. on August 1, 1955, defendant was driving his farm truck in a westerly direction on Lancaster Road, a two-lane blacktop highway at a point some 15 miles west of Peoria. He was proceeding to his soybean field, which extends some 1400 feet along the south side of the highway. The field has two entrances from Lancaster Road. The one used by defendant at the time of the collision is near the east end of the field, while the other entrance is some 564 feet further west, at the top of a hill in Lancaster Road as the highway proceeds westward.
When defendant was several hundred feet from the east entrance to the field, he gave a left-turn arm signal. He withdrew his arm some 50 or 100 feet before reaching the point where he turned left, slowed down to about 5 miles per hour, and started to make a left turn across the highway to enter the field. When defendant had proceeded to the point where the front end of the truck was off the highway and the rear end was on the south half of the eastbound lane, the motorcycle driven by Charles L. Saunders in an easterly direction on Lancaster Road collided with the rear end of defendant's truck. Defendant did not see Saunders approaching from the west at any time prior to the collision, for the hill in the road obscured the visibility to the west at the point where defendant turned left. Saunders had been enroute to work in Peoria from his home some 8 miles further west, where he lived with his wife and two sons. He was thrown from his motorcycle by the impact of the collision, and sustained injuries from which he died on September 14, 1955, some 44 days later.
As a result of Saunders's injury and death, expenses aggregating some $4,862.90 were incurred, including: ambulance $25; nursing $1,218; physician $147; surgeon $600; hospital $1,899.90; funeral $933; and burial space $50. Prior to the trial, plaintiff had paid for the nursing and ambulance service, the burial space, $586 on the hospital bill, and $533 on the funeral bill. According to her testimony, such payments were made from funds borrowed from relatives and friends, which she repaid from her earnings; from the sale of some ponies belonging to her and her husband; from the sale of livestock, and beans raised on the farm the year following the death of her husband; from insurance money payable to herself; and from a small savings account belonging to her and her husband.
Plaintiff filed a complaint on November 14, 1956, alleging substantially the foregoing facts, and averring that as a direct result of the injuries to her husband through defendant's negligence, she became personally liable under the Married Women's Act (Ill. Rev. Stat. 1955, chap. 68, par. 15), for medical and funeral expenses, for which she demanded judgment for $5,196.65. Defendant's motions to dismiss on the ground that the complaint set forth no cause of action were overruled, and his answer denied all charges of negligence, denied that under the Married Women's Act plaintiff was entitled to recover in this action, and averred as a separate defense that decedent was guilty of contributory negligence. Plaintiff's reply specifically denied that allegation. The issues made by these pleadings were submitted to the jury. Among the instructions given the jury were four which directed the denial of recovery if plaintiff's decedent were found guilty of contributory negligence. The jury entered a verdict in favor of plaintiff for $4,862.90, on which judgment was entered. The Appellate Court, in affirming that judgment, held that the complaint stated a cause of action and that the verdict was supported by the evidence.
In reviewing that judgment, we must first determine whether the elements of damage sought by plaintiff are recoverable under the theory of liability asserted. In resolving this issue, which is one of first impression for this court, we shall re-examine the basis and scope of recovery of damages in wrongful death cases under the Illinois statutes and case law, review the legal history of the problem, and then analyze the decisions of other jurisdictions which have been confronted with this issue.
Where the death of the decedent is the result of defendant's wrongful act, as in the instant case, no action lies under the section 339 of the Probate Act (Ill. Rev. Stat. 1955, chap. 3, par. 494), but an action may be maintained under the Wrongful Death Act (Ill. Rev. Stat. 1955, chap. 70, par. 2; Holton v. Daly (1882), 106 Ill. 131). Under that statute, no damages are allowed for the bodily pain and suffering of the deceased, or for medical or funeral expenses. The measure of damages recoverable is limited to the pecuniary loss to the widow and next of kin (Ohnesorge v. Chicago City Railway Co. (1913), 259 Ill. 424). Furthermore, an administrator may not bring actions under both the Wrongful Death Act and the Probate Act for the same tortious act. Susemiehl v. Red River Lumber Co. (1941), 376 Ill. 138; Ohnesorge v. Chicago City Railway Co. (1913), 259 Ill. 424.
Apart from these statutes and their construction in the cases, however, there are several Appellate Court cases which affect the issue. In the early case of Nixon v. Ludham, 50 Ill. App. 272, our Appellate Court, while denying a husband recovery of funeral expenses for the death of his wife on the ground that no civil action could be maintained for the death of a human being, nevertheless allowed him to recover, in a common-law action against the tortfeasor, the medical expenses incurred prior to her wrongful death. Moreover, two recent Appellate Court cases have expanded this approach, and have allowed the widow to recover in a separate common-law action against the tortfeasor the funeral and medical expenses incurred in connection with the wrongful death of her husband by virtue of her liability under the Married Women's Act (Ill. Rev. Stat. 1955, chap. 68, par. 15; Thompson v. City of Bushnell, (1952), 346 Ill. App. 352; Staken v. Shanle, (1959), 23 Ill. App.2d 269). In the Thompson case the court, recognizing that the action was without precedent in Illinois, except for partial support from the Nixon case, relied upon the Oregon case of Hansen v. Hayes, 175 Ore. 358, 154 P.2d 202, hereinafter discussed, as authority for its decision.
In reviewing the legal history of this problem it is apparent from the reasoning in the early Nixon case that the rule denying the recovery of funeral expenses is a corollary of the old common-law rule that no action for damages can be maintained for the life of a human being. That rule originated in the decision of Lord Ellenborough in 1808 in Baker v. Bolton, 1 Camp. 493, 170 Eng. Reprint 1099, issued without supporting reasons or authority. (3 A.L.R.2d 932). The old English rule, however, has been vigorously criticized in both England and in this country, and an imposing body of authority has developed recognizing a common-law right of a spouse to recover medical and burial expenses incurred on behalf of a husband or wife injured by a tortfeasor. (Dissent, Osborn v. Gillett (1873), L.R. 8 Exch. (Eng.); Worley v. Cin. H. & D.R. Co. 1 Handy 481, (1855), 12 Ohio Dec. Reprint 247; Sullivan v. Union Pacific Railroad Co. (1874), (8th cir.) 3 Dill. 334; Philby v. Northern Pacific Railroad Co. (1907), 46 Wn. 173, 90 P. 468; Hansen v. Hayes, (1945), 175 Ore. 358, 154 P.2d 202; Mattfeld v. Nester, (1948), 226 Minn. 106, 32 N.W.2d 291; Moss v. Hirzel Canning Co. (1955), 100 Ohio App. 509, 137 N.E.2d 440; Follansbee v. Benzenberg, (1954), 122 Cal.App.2d 466, 265 P.2d 183; Seymour v. Union News Co. (1954), (7th cir.) 217 F.2d 168; 3 A.L.R.2d 933; 42 A.L.R.2d 843.) In recognizing this right of action a variety of reasons have been advanced by the courts.
In the Sullivan case, the court refused to apply the old English rule that was predicated on Baker v. Bolton, and stated that it was "incapable of vindication." This criticism of the rule was quoted with approval by the Minnesota court, which refuted and rejected the reasoning of the English courts. (Mattfeld v. Nester, (1948), 226 Minn. 106, 32 N.W.2d 291.) The Minnesota court explained in the Mattfeld case that the English rule denying recovery misapplied the maxim that a personal right of action dies with the person, since only the wife's cause of action for personal injuries would die with her, but not the cause of action belonging to her husband, which was separate and distinct from hers. The court further stated that a common-law rule is not in force when the reasons for it have ceased to exist, or it is not adapted to existing conditions. Since the court found no valid reason for the rule denying the recovery of burial expenses, and that, "on the contrary, sound reason supports the rule allowing it," the court held that the husband could recover such expenses from the tortfeasor causing the death of the wife, where such damages were not recoverable under the wrongful death statute.
Similarly, the Ohio court allowed a direct common-law action by the husband to recover funeral expenses from a tortfeasor causing the death of his wife. (Moss v. Hirzel Canning Co. (1955), 100 Ohio App. 509, 137 N.E.2d 440). After noting that there could be no such recovery under the Ohio survival or wrongful death statutes, the court stated at p. 442: "Plaintiff's right of action for funeral expenses is one not existing by virtue of the Survival Statute. It is a direct action under the common law, and it arises by reason of the duty of the husband to provide the wife necessaries for her livelihood and upon her death, the duty to provide for her funeral services."
In McDaniel v. Trent Mills, 197 N.C. 342, 148 S.E. 440, the court predicated such recovery under the general rule that where the wife has been compelled to expend money from her personal estate as a result of injuries negligently inflicted on her husband by a third person, for which he cannot recover, she may recover ...