APPEAL from the Circuit Court of Sangamon County; the Hon.
L.A. MEHRHOFF, Judge, presiding.
MR. JUSTICE SMITH DELIVERED THE OPINION OF THE COURT:
Wrongful death actions arising from a single event a motorcycle with driver and passenger collided with a train. Many questions are raised. The deceased were ages 19 and 17, respectively, and unmarried a man and a woman. A verdict of $100,000 for each of their personal representatives was returned.
One issue mandates reversal and remandment briefly stated, it is the interjection of punitive damages by way of instruction and argument. This case came about through an instruction tendered by plaintiffs which quoted substantially verbatim from an Illinois Commerce Commission Rule (Rule 205, ICC General No. 138) and the section of the implementing statute (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 77) which gives a cause of action for damages for a violation of such rule, and if "willful", punitive damages.
The instruction read, in summary, that there was in force in this state a certain rule of the Commerce Commission which provided that:
"Every railroad company shall keep its right of way reasonably clear of brush, shrubbery, trees, weeds, crops and other unnecessary obstructions for a distance of at least 500 feet each way from every grade crossing where such things materially would obscure the view of approaching trains to travelers on the highway."
that if the jury decides that a party violated this rule on the occasion in question and that such violation was the proximate cause of the deaths of plaintiffs' decedents and further that they were in the exercise of due care, then the jury may "assess damages in favor of the plaintiffs and against the defendant" in accordance with a statute which provided that:
"In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter, or thing required to be done by any rule of the Commission, issued under authority of this Act, such public utility shall be liable to the persons affected thereby for all loss, damage or injury caused thereby or resulting therefrom, and if the jury find that the act or omission was wilful, the jury may in addition to the actual damages, award damages for the sake of example, and by way of punishment."
Clearly this instruction advised the jury that they could "may in addition" award punitive or exemplary damages "award damages for the sake of example, and by way of punishment". The instruction was objected to not as specifically as one might desire, but specific enough for our purposes. This punitive aspect of the award the jury might care to make was alluded to in argument the jury was asked to say to the people of the community by their verdict, "that the railroad should not have crossings with weeds all around them" "That you are not going to tolerate this, that the railroad must observe the rules to prevent this slaughter not just at this but at other crossings" "I don't believe it (the asked for amount of $400,000) would compensate them but it will be a deterrent as an example to this and every other railroad that you are not going to tolerate this".
• 1-3 As compared with personal injury actions, recovery for death is considerably circumscribed, quantitatively (compensatory in the sense that others are compensated for their "pecuniary injuries") and qualitatively (the "others" being a narrow, but reasonable category of persons who can recover), so to speak. The Wrongful Death Statute (Ill. Rev. Stat. 1971, ch. 70, par. 1, et seq.) gives to the personal representative the same action for his decedent that such person would have had "if death had not ensued" and that the person responsible "shall be liable to an action for damages, notwithstanding the death of the person injured" (par. 1); damages are for the "exclusive benefit of the widow and the next of kin" and shall be "such damages as they (the jury) shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife or the next of kin" "without limitation (in amount)". The magic words are "pecuniary injuries resulting from such death" (the quantity) and limited to the benefit of "the wife and the next of kin" (quality). A further reading of the act (par. 2) leaves no doubt that the qualitative limitation on recovery mandates the existence of spouse or next of kin because if there are none, the delimitations on recovery are for the exact amount needed (with a ceiling) to satisfy hospital, medical or surgical, and funeral expenses.
• 4-7 We of needs repeat what has often been said by courts here and elsewhere, the Wrongful Death Act is to be strictly construed as being in derogation of the common law, and being thus a creature of statute, courts are not at liberty to engraft conditions not within the purview of the Act. The rule denying a right of recovery for death occasioned by the negligent act of another derives from dictum in the early English case of Baker v. Bolton (1808), 170 Eng. Reprint 1033, it being there stated by Lord Ellenborough, "* * * In a civil action * * * the death of a human being could not be complained of as an injury." Following this enunciation of the common law came the passage of Lord Campbell's Act in 1846 which created a wrongful death action. It is thus apparent that the Illinois Wrongful Death Act was intended to afford the sole and exclusive remedy in a wrongful death case. If death results from the injury sued for, the suit of the injured person abates and cannot be further prosecuted. The sole purpose of the act is to compensate the widow and next of kin of the decedent for the injury resulting to them from his death and there is no implication, much less an expression, that the act was ever intended as a vehicle to punish those wilfully responsible for the death. Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 162; Chicago and Rock Island Railroad v. Morris, 26 Ill. 400.
• 8 In short, the Wrongful Death Act is not subject to amendment by implication, any amendment must be by express legislative enactment. We need only quote from amongst many, Hartray v. Chicago Rys. Co., 290 Ill. 85, 124 N.E. 849, in support:
"* * * Since the right of action for death by wrongful act is wholly statutory, and must be taken with all the conditions imposed upon it, the burden being upon plaintiff to bring himself within the requirements of the statute, it is almost universally held that a provision in the statute creating the right, requiring an action thereon to be brought within a specified time, is more than an ordinary statute of limitations and goes to the existence of the right itself. It is a condition attached to the right to sue at all."
And more specifically, from an old but still authoritative case, Conant v. Griffin, 48 Ill. 410 (death by shooting):
"It is apparent from the rulings, that the condition of the defendants, as to wealth, could not be taken into consideration by the jury in arriving at the measure of compensation for the pecuniary loss, for, was their wealth great or small, it did not in any manner increase or diminish the pecuniary loss sustained by the parties complaining. This action is the creature of the statute, and must be governed entirely by its provisions, and as they only provide for compensation for the pecuniary loss, the evidence ...