The opinion of the court was delivered by: Marovitz, District Judge.
Motion of defendant to strike Count II of the complaint.
This is a wrongful death action brought by the husband of the
deceased, personally, and as administrator of the estate. In
Count I, it is alleged that due to the negligent operation of
defendant railroad, a train on which deceased was a passenger was
derailed. Deceased, as a proximate result of the alleged
negligence, received severe injuries leading to her death.
Plaintiff seeks recovery in the sum of $30,000. In Count II, the
plaintiff, suing personally as the husband of deceased, seeks
recovery of $3,500 for expenses incurred for the funeral and
burial of deceased, including the loss of income resulting from
the making of arrangements for said funeral, and attending same.
Defendant has filed this motion to strike Count II of the
complaint. In support thereof, defendant argues that under the
Illinois Supreme Court holding in Saunders v. Schultz, 20 Ill.2d 301,
170 N.E.2d 163 (1960), a spouse may recover funeral and
medical expenses for which said spouse was liable under the
Family Expense Statute, Sec. 15, Chap. 68, Ill. Rev.Stat., but
may not recover unliquidated expenses such as loss of income
incurred in connection with making funeral arrangements.
Secondly, defendant asserts that plaintiff, having failed to
plead freedom from contributory negligence in Count II, is not
entitled to recover as a matter of law.
The Illinois courts have not as yet squarely faced the issue at
bar. In Saunders v. Schultz, supra, the Court held that under the
common law of Illinois, a surviving spouse should have the right
to recover "funeral and medical" expenses. As one reason
therefor, but not the sole controlling basis as defendant
contends, the Court pointed to the Family Expense Statute which
holds the surviving spouse personally liable for such medical and
burial expenses. The question of loss of income in preparation
for the funeral is
not reached. However, from the reasoning of the Court, it would
seem that such damages should be allowed.
Such an action as the one at bar is completely separate from
the wrongful death action. "[T]his liability of the surviving
spouse," the Court said, "for such expenses constitutes very real
damages. (speaking of medical and funeral expenses) Since that
liability results from defendant's tortious conduct, it is only
legally sound, and in accordance with basic negligence
principles, that the burden of such damages should fall, not on
the innocent victim, but upon the tort-feasor."
Similarly, the loss of income suffered by the surviving spouse
is a result of defendant's negligence. Although not compelled by
statute, it is every bit as much of an obligation to arrange a
funeral, as it is to pay for it, and losses incurred in such
arrangements should be compensated. Defendant's argument that the
Court limited recovery to those expenses for which the spouse is
liable under the Family Expense Statute, is without weight. The
Court specifically speaks of that statute in an ancillary manner,
as an additional reason why recovery should be permitted, but
does not limit recovery in all cases to the statutory
The Court indicated that the liability of defendant was to be
based on the common law, "responsive to the changing obligations
and relationships within our legal system * * *." (20 Ill.2d p.
310, 170 N.E.2d p. 168). "This interpretation," the Court
continued, "is supported not only by cogent reasoning, but by the
dominant judicial opinion in other jurisdictions, and earlier
decisions of our courts." (20 Ill.2d at p. 310, 170 N.E.2d p.
Although the Court was referring primarily to the recovery of
funeral and medical expenses, there was no strict line drawn. In
Philby v. Northern Pacific R. Co., 46 Wn. 173, 89 P. 468, 9
L.R.A.,N.S., 1193, the Court allowed such recovery for loss of
time. See also Southern Railway Co. v. Covenia, 100 Ga. 46,
29 S.E. 219, 40 L.R.A. 253.
In the absence of a clear limitation by the Illinois Supreme
Court, it is the judgment of this Court that such an action for
recovery of lost income can be maintained.
As for defendant's second allegation, plaintiff responds that
through a typographical error the allegation as to freedom from
contributory negligence was omitted. Plaintiff is therefore given
leave to amend the complaint in this respect.
The Court might point out at this time that the complaint has
failed to allege any federal grounds of jurisdiction. Unless such
grounds are pleaded by amendment, the Court, shall, on its own
motion, dismiss the complaint.
© 1992-2003 VersusLaw ...