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Howe v. Clark Equipment Co.

OPINION FILED FEBRUARY 18, 1982.

ROBERT W. HOWE, ADM'R OF THE ESTATE OF CLOYD HOWE, DECEASED, PLAINTIFF-APPELLANT,

v.

CLARK EQUIPMENT COMPANY, DEFENDANT-APPELLEE. — (KEITH KEMPER, DEFENDANT.)



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents a question concerning punitive damages; specifically, whether they are recoverable under section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2) or under section 27-6 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6) (the Survival Act), or under neither. Since the case comes to us at the pleading stage, we are not called upon to decide what factual basis may exist for their imposition.

Plaintiff, as administrator of the estate of Cloyd Howe, deceased, filed a four-count complaint against the defendant. The basis of the suit was that of strict liability. The factual allegations were that defendant was the manufacturer of an end loader known as a Melroe Bobcat; and that the decedent, while operating the Bobcat, sustained injuries which ultimately resulted in his death as a result of unreasonably dangerous conditions, or a combination thereof, existing in the Bobcat. Counts I and III sought compensatory damages under the Wrongful Death Act and for personal injuries to the decedent, respectively. These counts are still pending at the trial level and are not involved in this appeal.

Counts II and IV reiterated the factual allegations and further alleged wilful and wanton disregard for the safety of the public on the part of the defendant. They sought punitive damages under the Wrongful Death Act and for personal injuries and were parallel to counts I and III.

On motion of the defendant, the circuit court of Champaign County dismissed counts II and IV on the basis that there is no right to punitive damages under either the Wrongful Death Act or the Survival Act. On motion of the plaintiff, the trial court made the necessary finding under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)), and this appeal ensued.

• 1 It is fundamental that a motion to dismiss admits all well-pleaded facts and therefore, for the purposes of this appeal, we must assume as a matter of law that the Bobcat was unreasonably dangerous, that the unreasonably dangerous condition was the cause of the decedent's injuries and subsequent death, and that the defendant was guilty of wilful and wanton misconduct in the manner described in counts II and IV. All that then remains is a question of law, whether under any circumstances punitive damages may be recovered under the aforementioned statutes.

The positions of the parties, stated briefly, are: plaintiff maintains alternatively that (1) there is a common law action for wrongful death, apart from and in addition to the statute, under which punitive damages may be recovered as in any common law action; or (2) the prior authorities under the Wrongful Death Act may be read to allow punitive damages. Defendant maintains that the Wrongful Death Act speaks only of "fair and just compensation" and that this language automatically precludes any consideration of punitive damages.

As to the Survival Act, the positions, stated briefly, are: plaintiff maintains that prior authorities permit punitive damages. Defendant maintains that the Survival Act speaks only of "injury to the person" and that a death action is not included within the scope of that language under the prior authorities.

A concentrated history of the statutes will be helpful before proceeding to an examination of the authorities. The original rule, stemming from Baker v. Bolton (K.B. 1808), 1 Camp. 493, 170 Eng. Rep. 1033, was that "in a civil court, the death of a human being could not be complained of as an injury." In order to abrogate the harshness of the rule, the legislature in 1853 enacted the predecessor of the Wrongful Death Act, and followed this in 1872 by enacting the Survival Act.

Early interpretations of these acts were quite restrictive. Holton v. Daly (1882), 106 Ill. 131, held that the Wrongful Death Act was the exclusive remedy and that no common law action existed on account of the presence of the statute. It was also held that the Survival Act allowed survival of an action only when death resulted from a cause other than the act which caused the original injury.

• 2 Commencing in 1960, the supreme court began to relax somewhat these strictures. In Saunders v. Schultz (1960), 20 Ill.2d 301, 170 N.E.2d 163, the court held that there existed a common law right to recover funeral and medical bills incurred as a result of the tortious conduct. This right was held to exist independently of the Wrongful Death Act and decisions to the contrary were overruled. The court noted that such expenses were imposed on a surviving spouse, or on the estate of the decedent, by law and constituted very real damages, and the court further observed that the common law is responsive to changing obligations and relationships. Plaintiff here relies on this language in arguing that the time has come to recognize a common law action for wrongful death beyond the statute.

• 3 The next step was taken by the supreme court in 1974 with Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583. In that case the court expressly overruled Holton and held that the Survival Act was the proper vehicle to recover damages for the pain and suffering experienced by the decedent from the time of the injury until the time of death, even when the injury was the direct cause of death. The seminal language in the opinion is:

"The remedy available under Holton will often be grievously incomplete. There may be a substantial loss of earnings, medical expenses, prolonged pain and suffering, as well as property damage sustained, before an injured person may succumb to his injuries. To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer's liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter." 56 Ill.2d 423, 431, 308 N.E.2d 583, 587.

• 4 It is thus clear that the Wrongful Death Act is no longer a bar to claims for pain and suffering on the part of the decedent and to claims for expenses relating to his illness and death and resulting from ...


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