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Tunnell v. Edwardsville Intelligencer





APPEAL from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County; the Hon. FRED P. SCHUMAN, Judge, presiding.


Rehearing denied November 25, 1969.

This case is here on leave granted to appeal from a judgment of the Appellate Court, Fifth District. 99 Ill. App.2d 1.

The original plaintiff, Robert W. Tunnell, brought this action in the circuit court of Madison County, alleging that he had been defamed in a newspaper article published by the defendant, Edwardsville Intelligencer, Inc., during a mayoralty campaign in the city of Edwardsville. The article charged that the incumbent mayor was ignoring a local ordinance and a State statute by making repeated temporary appointments to the police and fire departments of the city. It referred to Robert W. Tunnell who, as city attorney, had been involved in interpreting the applicable statutes and ordinances, and concluded with the allegedly defamatory statement: "Rumors on the main stem today had it that Atty. Tunnell was working to break the law, whether it was the city or state law was not explained."

The case was tried by jury, and at the close of the evidence the defendant moved for a directed verdict. The trial judge reserved his ruling, and submitted the case to the jury. Among the instructions given was one submitted by the plaintiff which told the jury that if they found that the article was published with actual malice, "you may award the plaintiff compensatory damages or punitive damages or both compensatory and punitive damages." The jury returned the following verdict: "We, the jury, find in favor of the plaintiff and against the defendant, and assess plaintiff's compensatory damages in the sum of $None and punitive damages in the sum of $35,000."

The verdict was returned on May 11, 1966. The trial judge did not at once enter judgment on the verdict in accordance with section 68(2) of the Civil Practice Act. (Ill. Rev. Stat. 1965, ch. 110, par. 68(2).) On June 29, 1966, he ruled upon the defendant's reserved motion, set aside the verdict and entered judgment for the defendant. Thereafter the court overruled the plaintiff's post-trial motion, and the plaintiff appealed.

After the briefs of both parties had been filed in the appellate court, Robert W. Tunnell died and his executor, Lena S. Tunnell, sought to be substituted as plaintiff. The defendant moved to dismiss the appeal on the ground that the plaintiff's death caused the action to abate. The appellate court allowed the substitution, and on the merits reversed the judgment for defendant and entered judgment for plaintiff. 99 Ill. App.2d 1.

We first consider the appellate court's ruling on the abatement issue, for if the action abated it will be unnecessary to review the issues that are raised upon the merits.

At common law, a cause of action for a purely personal injury did not survive the death of either the injured party or the wrongdoer. Actions for libel and slander — based on injury to a most intimate human quality, reputation — were clearly of the sort which did not survive (Reed v. Real Detective Publishing Co., 63 Ariz. 294, 162 P.2d 133; Benton v. Knoxville News-Sentinel Co., 174 Tenn. 658, 130 S.W.2d 105), and a pending defamation action was held to abate upon the death of either party. (See Anno. 134 A.L.R. 717.) While section 339 of the Probate Act has reversed the general rule with regard to the abatement of actions for personal injury, actions for slander and libel are specifically excepted from the statute, and remain subject to the common-law rule. Ill. Rev. Stat. 1965, ch. 3, par. 339; see Carlson v. Dell Publishing Co., 65 Ill. App.2d 209; Chiagouris v. Jovan, 43 Ill. App.2d 220.

Even as to actions which do not survive, however, there is no abatement upon the death of a party if the litigation has progressed to a point at which the merits of plaintiff's allegations have been affirmatively determined. This principle is most frequently applied in those cases in which the plaintiff has secured a judgment after a trial. The death of either party pending an appeal from that judgment will not abate the action. The cause of action is said to have merged in the judgment and, thus, the common-law rule of abatement is inapplicable. (Castelluccio v. Cloverland Dairy Products Co., 165 La. 606, 115 So. 796; Gordon v. Hillman, 102 Wn. 411, 173 P. 22; Akers v. Akers, 84 Tenn. 7.) So too, when a plaintiff dies after having received a verdict in his favor but before the entry of judgment, his action does not abate and he is entitled to judgment upon that verdict. Garret v. Byerly, 155 Wn. 351, 284 P. 343; Rosenblum v. Ginis, 297 Mass. 493, 9 N.E.2d 525; Hilker v. Kelley, 130 Ind. 356, 30 N.E. 304.

In the present case, however, the verdict in favor of the plaintiff was subsequently set aside, and judgment was entered for the defendant. There are numerous cases which hold that the death of a plaintiff pending his appeal from a judgment for the defendant in a nonsurviving action abates the action and the appeal must be dismissed. (Martin's Admr. v. Baltimore and Ohio Railroad Co., 151 U.S. 673, 38 S.Ct. 311; Eades v. House, 3 Ariz. App. 245, 413 P.2d 576; In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60; Mills v. Alexander, 206 Ark. 754, 177 S.W.2d 406; see also Nicora v. Demosthenes, 69 Nev. 137, 243 P.2d 253; but see 1 Freeman, Judgments, sec. 133, p. 250.) Each of these decisions, however, involved a situation in which both the verdict and the judgment were for the defendant in the trial court. They proceeded upon the ground that since the plaintiff does not have a verdict in his favor, "if the judgment below against [plaintiff] * * * be reversed * * *, no new trial could be had, because the action abated by his death." Martin's Admr. v. Baltimore and Ohio Railroad Co., 151 U.S. 673, 703.

The present case does not present that problem. The plaintiff received a verdict in the trial court and when the motion to substitute his executor was made in the appellate court, the plaintiff's post-trial request for a new trial was withdrawn. If the appellate court decided the merits of the case in favor of the plaintiff, there was no need to retry it, for judgment could be entered on the verdict.

In cases like this one, reviewing courts have recognized that it is inappropriate to dismiss an appeal upon the death of the plaintiff-appellant. "Where it is found that the trial court improperly granted a judgment notwithstanding the verdict, it would be an unjust rule that would deny appellant relief as of the date of the submission of the motion. * * *" Nenezich v. Elich, 183 Wn. 657, 49 P.2d 33; see also Coughlin v. District of Columbia, 106 U.S. 7, 27 L.Ed. 74; Carl v. Department of Labor and Industries, 38 Wn.2d 890, 234 P.2d 487; Craft v. Stone, 74 Ind. App. 71, 124 N.E. 473.

What is significant in such cases, in our opinion, is not any metaphysical notion of merger of the cause of action into the verdict, but rather the circumstance that all factual questions had been resolved before the plaintiff died. No new trial is involved, and the reviewing court is in a position to determine the controversy on the merits. The present case was ripe for judgment when the plaintiff died, and the appellate court properly held that his death did ...

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