Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. O'Brien, Judge, presiding.
PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Deceased, before his death, filed a malpractice action against several parties, including defendants-appellees, J. Ernest Breed and Breed Radium Institute. His wife was joined as a party plaintiff. Immediately after his death the malpractice complaint was voluntarily dismissed without prejudice. Later it was reinstated on defendants-appellees' motion. Several months later it was dismissed with prejudice for failure to serve summons on defendants within a reasonable time. A few months thereafter the administrator filed the present action against the parties, including defendants Breed and Breed Radium Institute, seeking recovery under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2), and for funeral and medical expenses. The trial court held the action for wrongful death and for medical and funeral expenses was barred by the previous judgment, dismissing the common law malpractice suit. We reverse as to the claim under the wrongful death action and for funeral expenses. We agree that the claim for medical expenses is barred under the doctrine of res judicata.
In 1978, decedent Fountas filed a malpractice action against several defendants including Dr. Breed and the Breed Radium Institute (hereinafter referred to as defendants). The complaint was amended three times and decedent's wife was added as a party plaintiff. Naturally her claim was at that time basically one for loss of consortium; however the complaint does not specifically so limit her claim. The last amended complaint alleged that defendants last treated decedent on May 31, 1978 (the first treatments by defendants were prior to May 1976). On July 9, 1979, the defendants filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (73 Ill.2d R. 103(b)). That rule provides that if the plaintiff fails to exercise reasonable diligence to obtain service, the case may be dismissed without prejudice if the failure was prior to the expiration of the statute of limitations or with prejudice, if the failure was after the expiration of the statute of limitations. Under Supreme Court Rule 273 (73 Ill.2d R. 273), such dismissal operates as an adjudication on the merits. There is nothing in the record indicating that there was any hearing on the motion prior to March 26, 1980.
On February 1, 1980, decedent died. On March 26, 1980, plaintiff's motion for a voluntary non-suit was granted. However, on May 19, 1980, the order granting the non-suit was vacated on defendants' motion. *fn1 On October 3, 1980, eight months after decedent's death, defendants' motion to dismiss was granted with prejudice. Such dismissal is only proper if the failure to serve existed past the expiration of the statute of limitations. In the complaint decedent had alleged conduct occurring on May 31, 1978, only about one year prior to the filing of the motion to dismiss. Obviously if this date had been brought to the attention of the trial court in that case, any dismissal would not have been with prejudice. The trial court indicated in the record that it was with great reluctance that it was entering the order. At the hearing, plaintiffs' counsel never argued the 1978 date. He stated the complaint alleged a course of treatment through August 23, 1977. The trial judge correctly found that there was no allegation that the treatment which began in May 1976 ended in 1977. Accordingly since the 1978 treatment was never argued, he was bound by the 1976 date and dismissed the case against appellees with prejudice. A Supreme Court Rule 304(a) finding making that dismissal enforceable and appealable was entered. However no appeal was taken.
On March 25, 1981, Mary Fountas as administrator (hereinafter called plaintiff) filed the present action. In it she alleged the same conduct and same dates mentioned in the first action. Defendants successfully moved to dismiss the action because (1) it was barred by res judicata; (2) the ability to bring a wrongful death action is based on the decedent's ability to have brought suit had he survived and decedent could not have done so since his action was dismissed with prejudice.
• 1, 2 Even though two lawsuits may involve the same parties or the same factual situation, the doctrine of res judicata is only applicable when the two lawsuits involve the same cause of action. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App.3d 59, 387 N.E.2d 831.) Two claims are not necessarily the same cause of action merely because they arose out of the same general transaction or set of facts. (Stephan v. Yellow Cab Co. (1975), 30 Ill. App.3d 996, 333 N.E.2d 223; 23A Ill. L. & Prac. Judgments sec. 343 (1979).) The Wrongful Death Act created an independent cause of action (Ohnesorge v. Chicago City Ry. Co. (1913), 259 Ill. 424, 102 N.E. 819), which is a separate cause of action from a personal injury action (Vukovich v. Custer (1952), 347 Ill. App. 547, 107 N.E.2d 426, rev'd on other grounds (1953), 415 Ill. 290, 112 N.E.2d 712), and from a common law action for medical or funeral expenses. (Chidester v. Cagwin (1966), 76 Ill. App.2d 477, 222 N.E.2d 274.) Furthermore after decedent's death, the lawsuit became, in effect, one under the survival statute. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6.) Such action is recognized to be separate and distinct from an action for wrongful death. (Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583; Mitchell v. United Asbestos Corp. (1981), 100 Ill. App.3d 485, 426 N.E.2d 350.) As stated in Mitchell v. United Asbestos Corp. (1981), 100 Ill. App.3d 485, 502-03, 426 N.E.2d 350, 362:
"Although action is to be brought under the Wrongful Death Act by and in the name of the personal representative of the deceased person, the legislative intent of the Act is that the claims brought are those of the individual beneficiaries. (Wilbon v. D.F. Bast Co.) By contrast, a claim under the survival statute is that of the deceased which arose during his life and survived his death. The statutes are not the same, and in Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583, our supreme court stated:
`The statutes were conceptually separable and different. The one related to an action arising upon wrongful death; the other related to a right of action for personal injury arising during the life of the injured person.' Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 431, 308 N.E.2d 583, 586-87.
Where a cause of action is brought both for wrongful death and for personal injury arising during the life of the deceased, both statutes must come into effect. As stated in Murphy:
`[W]here there have been wrongful death and survival statutes the usual holding has been that actions may be concurrently maintained under those statutes. The usual method of dealing with the two causes of action * * * is to allocate conscious pain and suffering, expenses and loss of earnings of the decedent up to the date of death to the survival statute, and to allocate the loss of benefits of the survivors to the action for wrongful death.' Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 429, 308 N.E.2d 583, 586."
• 3 Appellees contend that the doctrine of res judicata applies because plaintiff could have added a claim for wrongful death to the original lawsuit once decedent died. Such joinder would be permitted under section 44 of the Civil Practice Act. (Ill. Rev. Stat. 1981, ch. 110, par. 44; see Mitchell v. United Asbestos Corp. (1981), 100 Ill. App.3d 485, 426 N.E.2d 350.) But the plaintiff was not required to do so. Where there are two separate causes of actions insured's failure to join them in the first action does not bar the bringing of a later suit on the second cause of action. Chidester v. Cagwin (1966), 76 Ill. App.2d 477, 222 N.E.2d 274.
• 4 The doctrine of collateral estoppel also does not bar recovery. Unlike the doctrine of res judicata, the doctrine of collateral estoppel is only applicable where the issue is actually and necessarily litigated and determined in the first action. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App.3d 59, 387 N.E.2d 831.) A Rule 273 adjudication on the merits has no greater weight than a general jury verdict and since a jury could have denied recovery merely on a finding of no damages, such a judgment will not be applied to bar a separate claim arising out of the same transaction. (Stephan v. Yellow Cab Co. (1975), 30 Ill. App.3d 996, 333 N.E.2d 223.) In that ...