APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This action was brought to recover damages for the injuries and death of Jack Raymond Murphy, plaintiff's husband. The complaint contained two counts and sought compensation for wrongful death, loss of clothing and wages, and for pain and suffering sustained by decedent.
On June 11, 1968, the decedent suffered severe burns in a sudden fire which occurred on the premises of defendants, James Hocker and the Martin Oil Co. Decedent was hospitalized and he died nine days later. Plaintiff, Charryl Murphy, brought this action in her capacity as administratrix of her husband's estate, as surviving spouse, and as next friend for her minor children.
Count I of the complaint alleged a cause of action under the Illinois Injuries Act, Ill. Rev. Stat., ch. 70, par. 1 et seq., *fn1 for wrongful death. Count II alleged a survivorship action for the loss of decedent's clothing in the fire, loss of the wages he would have earned during the nine days prior to his death, and for the pain and suffering he sustained as a result of the incident. Defendants moved to dismiss Count II of the complaint contending that it did not contain a cause of action which is maintainable concurrently with the wrongful death action under present Illinois law. The motion was granted and the court certified that there was no just reason to delay enforcement of or appeal from that order. Plaintiff has perfected this appeal and urges a reappraisal of the rule which dictated the dismissal of Count II of the complaint.
This controversy results from the application of a rule which was first enunciated in Holton v. Daly, 1882, 106 Ill. 131. In that case our Supreme Court held that the Wrongful Death Act was the exclusive remedy for the recovery of damages by survivors when a death was caused by a negligent act. This interpretation brought the act into direct contradiction with the earlier survival statute, *fn2 which provided that all actions for personal injuries or property damages survive the death of the claimant. The result was the concurrent existence of the interpretation of the Wrongful Death Act as an exclusive remedy, and the literal meaning of the Survival Act which would preserve an alternative remedy. The Court resolved this dilemma by further holding the survival statute inapplicable to any fact situation also covered by the Wrongful Death Act. In so doing, the court created an exception to the literal meaning of the survival statute an exception which abated all previously existing actions where death resulted from the negligently inflicted injuries. The rule of the Holton case was followed in Illinois for over seventy years, despite many unsuccessful attempts to overthrow it.
The strict application of the Holton doctrine to the case at bar would unquestionably result in the affirmation of the order of dismissal. Plaintiff contends, however, that the construction given the two statutes in Holton v. Daly results in an unjust rule which should not stand, that our Supreme Court has recognized this injustice and, in recent decisions, has undermined the rule to the point where it is now obvious that it would not be sustained if challenged, and that the rule violates the Equal Protection clauses of the U.S. and the Illinois Constitutions. We must decide to what extent the Holton rule still justifies abatement of actions for property damages or damages for pain and suffering when the negligently inflicted injuries also resulted in death.
In Susemiehl v. Red River Lumber Co., 1941, 376 Ill. 138, 33 N.E.2d 211, our Supreme Court was confronted with a challenge to the old rule. There the court refused to modify it and indicated that if any change was to be made, the long history of the Holton case dictated that it was now within the exclusive province of the legislature. The court stated at 376 Ill. 138, 140:
"It is true, as the appellant argues, that some other jurisdictions have arrived at a different result. However, the rule of Holton v. Daly, supra, has been the interpretation of the law in Illinois for nearly sixty years. It has been followed in this court at least ten times, many more times than that in the Appellate Courts and in an unknown and unknowable number of cases in the trial courts of this State. If that rule is to be changed at this time, it must be accomplished by a legislative enactment; this court must adhere to the rule of stare decisis. The trial court and the Appellate Court correctly interpreted the law as it exists in Illinois, and the judgment of the Appellate Court is affirmed."
The Court, however, later re-examined this position. In Saunders v. Schultz (1960), 20 Ill.2d 301, 170 N.E.2d 163, the Court referred to its holding in Susemiehl that any change was now a legislative imperative and stated at 20 Ill.2d 301, 311:
"Almost a score of years have now passed since this pronouncement without legislative action in this field. 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 Act, and all cases to the contrary are overruled." (Emphasis ours).
Therefore, to the extent that the Holton rule prevented survival of actions for "pecuniary losses" to survivors or the estate, the case was overruled. The factual situation in Saunders, however, presented only the narrow question of whether medical and funeral expenses are recoverable in a common law action concurrently with proceedings for wrongful death, and the court placed heavy reliance upon legal liability of survivors for those expenses under Illinois law. Consequently, no cases involving any other type of pecuniary losses have arisen, and the most recent case, O'Connor v. Schwindaman (1971), (Ill. App.2d), 268 N.E.2d 455, indicates that the holding in Saunders should be restricted to its own facts, i.e., that only medical and funeral expenses are recoverable in a separate action. We are not convinced of this interpretation.
• 1 The measure of recovery under the Wrongful Death Act normally includes only the loss to survivors of the support that decedent would have provided but for the negligence of the defendant. There are no provisions, except for certain exceptions not applicable here, for the recovery of any other tangible loss of personal property to the estate or survivors caused by the negligence of the tortfeasor. In allowing recovery for medical and funeral expenses in Saunders, the court's narrow holding was that those items were recoverable. However, it also announced the broader rule quoted above that "pecuniary losses * * * not recoverable under the Wrongful Death Act" may now be the subject of a separate common law action. We believe that the court's reliance upon Illinois law imposing liability for medical and funeral expenses upon survivors was only for the purpose of establishing that the expenses were a pecuniary loss to them, and was not intended to limit the holding to those liabilities specifically imposed by statute. The exception created by the Saunders case logically embraces any situation encompassed by the rule therein expressed. It includes not merely medical and funeral expenses, but other losses as well. We can see no cogent reason for allowing recovery of medical expenses, but denying an action for loss of personal property destroyed by the same action of the defendant that caused the death. Both are pecuniary losses suffered and both represent injuries to the estate or the survivors. Any distinction made in terms of out-of-pocket expenses after the death versus loss of personal property which would have been included in the estate does not have a logical basis. Both represent pecuniary losses which were directly caused by the tortfeasor and should be compensated. See Periard v. Nelson (1957), 14 Ill. App.2d 566, 145 N.E.2d 172.
• 2 Count II of the complaint at bar contained an allegation that a loss was suffered by virtue of the destruction of the decedent's clothing in the fire that caused his death and loss of the wages he would have earned had he been able to work during the nine days that passed between his injury and his death. We believe these to be pecuniary losses of the type contemplated by the Supreme Court in Saunders v. Schultz, supra. ...