Appeal from the Circuit Court for the Sixteenth Judicial
Circuit of Kane County; the Hon. CHARLES G. SEIDEL, Judge,
presiding. Judgment adverse to certain defendants affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This suit was brought in the Circuit Court of the 16th Judicial Circuit, Kane County, by Lawerance A. Chidester, as Administrator of the Estates of Richard and Evelyn Chidester and of their children, Kim, Robin and Richard Chidester, Jr., and of Romona Chandler, and by Philip Thomas, as Administrator of the Estate of Dorothy Thomas, against the defendants, Merritt E. Cagwin, d/b/a M.E. Cagwin Trucking Company, Orrin Sheer and John W. Popenhagen, in which the plaintiffs, as administrators of the respective estates, seek to recover the funeral and burial expenses of the respective decedents.
The plaintiffs had brought a prior action under the Injuries Act (Ill Rev Stats 1965, c 70, par 1, et seq.) for the wrongful deaths of the respective decedents. In that litigation, judgments were entered against all of the defendants with the exception of Popenhagen. These judgments were affirmed by this court (43 Ill. App.2d 336, 193 N.E.2d 233), and were paid and satisfied. In the case at bar, the trial court granted plaintiffs' motion for summary judgment on the question of liability against the defendants, Cagwin and Sheer, based upon the prior judgments. After a trial on the question of damages, the court entered judgment against these defendants for the funeral and burial expenses of the respective decedents in the amounts which were proven.
The defendants have prosecuted this appeal and contend that the administrators, as plaintiffs, could have no cause of action for burial and funeral expenses other than that specified in section 2(c) of the Injuries Act (Ill Rev Stats 1965, c 70, par 2(c)), which provides in part:
"Where the deceased person left no widow or next of kin entitled to recovery, the damages shall, subject to the following limitations inure, to the exclusive benefit of the following persons, or any one or more of them:
"(c) to the personal representatives, as such for the costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee. In any such case the measure of damages to be recovered shall be the total of the reasonable value of such hospitalization or hospital service, medical and surgical services, funeral expenses, and such costs and expenses of administration, including attorney fees, not exceeding the foregoing limitations for each class of such expenses and not exceeding $900 plus a reasonable attorney's fee."
The defendants conclude that, since the decedents left next of kin, there can then be no recovery by the administrators for funeral expenses in that the Injuries Act gives them a right to sue for such expenses only when no spouse or next of kin survives. However, the plaintiffs' suit for funeral and burial expenses was not founded upon the Injuries Act, but was based upon a common-law right of action in the administrator to sue for these damages. For a long period of time, Illinois did not recognize a common-law right to sue for funeral expenses. Such position was apparently a corollary of the old common-law rule that no action could be maintained for the death of a person. This concept, and the denial of such a common-law right, was unequivocally laid to rest by our Supreme Court in Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163 (1960).
In Saunders, at pages 309 and 310 after an extensive review of the development of the common law with respect to the recovery of damages where one dies from injuries wrongfully inflicted by another the court held that there no longer existed any legally cogent reason for denying a spouse the right to recover for medical and funeral expenses incurred on behalf of a mate, wrongfully injured or killed. The court, in arriving at this conclusion, observed at page 307, ". . . 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."
The court specifically held in Saunders that a surviving spouse could recover the medical and funeral expenses incurred on behalf of a mate who was wrongfully killed. The rationale of the decision was: First, that the previous rule denying such recovery was but a "corollary of the archaic common-law rule that there could be no recovery for the death of a human being, which is no longer the law," and second, a surviving spouse is personally liable under the family expense statute for medical and funeral expenses of the other spouse. The court observed at page 210, that the resulting liability for such expenses constituted very real damages and that, "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 tortfeasor."
This rationale is equally apropos to the plaintiffs' claim in this case. Claims for the funeral expenses of the decedents were filed against their respective estates and were allowed by the probate court. The liability of the estate and the consequent damages suffered by it are equally as real as those suffered by a surviving spouse under the family expense statute. The reason for the recognition of the right of a surviving spouse to recover for the liability incurred for medical and funeral expenses in case of a wrongful death is no more compelling than that for the acknowledgment of the same right in an administrator or executor for the same liability suffered in an estate.
Indeed, the Supreme Court in Saunders indicated as much stating at page 310 as follows:
"Inasmuch as it is the genius of our common law that it can be, and is, responsive to the changing obligations and relationships within our legal system, we believe that the common law should be construed to permit the recovery of such funeral and medical expenses in an action either by the decedent's estate, or, as in the instant case where no such claim was made, by the surviving spouse. This interpretation is supported not only by cogent reasoning, but by the dominant judicial opinion in other jurisdictions, and earlier decisions of our courts." (Italics ours.)
And, at page 311, the Supreme Court overruled the earlier cases which held that medical and funeral expenses could not be recovered by a surviving spouse or an estate, in the following language:
"The estate or the spouse, either or both as the circumstances indicate, are entitled to recover for pecuniary losses suffered by either or both which are not recoverable under the Wrongful Death ...