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05/30/96 MICHAEL S. PENBERTHY AND DAVID C. WALPOLE

May 30, 1996

MICHAEL S. PENBERTHY AND DAVID C. WALPOLE, PLAINTIFFS-APPELLEES,
v.
DOROTHY PRICE, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ROBERT E. KENLY, DECEASED, DEFENDANT-APPELLANT, AND PAGE III, INC., D/B/A TOP OF THE HILL TAVERN, LOUIS T. ROMANIK, D/B/A AMERICAN LEGION STOOKEY POST 1255, AND ALTON E. HARPER, D/B/A AMERICAN LEGION STOOKEY POST 1255, DEFENDANTS.



Appeal from the Circuit Court of St. Clair County. No. 90-L-999. Honorable William B. Starnes, Judge presiding.

The Honorable Justice Maag delivered the opinion of the court: Chapman, J., and Welch, J., concur.

The opinion of the court was delivered by: Maag

The Honorable Justice MAAG delivered the opinion of the court:

This case arises from a motor vehicle accident in which an allegedly intoxicated Robert E. Kenly, while operating a vehicle, crossed the centerline and collided with a vehicle driven by Michael S. Penberthy. Both Penberthy and his passenger, David C. Walpole, were injured. Kenly died from his injuries.

The plaintiffs, Michael S. Penberthy and David C. Walpole, filed a six-count complaint in the circuit court of St. Clair County against the defendants, the estate of Robert E. Kenly (Estate) and Page III, Inc. (Page). The plaintiffs' actions against the Estate were premised on the theories of negligence and wilful and wanton behavior. The complaint alleged a single act of wilful and wanton misconduct on the part of Robert Kenly: "He operated his motor vehicle on a public roadway when he was so intoxicated so as to be entirely unable to control his motor vehicle." The plaintiffs' actions against Page were based on the Dramshop Act. Ill. Rev. Stat. 1989, ch. 43, par. 135 (now 235 ILCS 5/6-21 (West 1994)).

On March 19, 1991, the plaintiffs amended their complaint, adding four more counts under the Dramshop Act. Two of these counts were against defendant Louis T. Romanik, d/b/a American Legion Stookey Post 1255, and the other two counts were against Alton E. Harper, d/b/a American Legion Stookey Post 1255.

The Estate filed an answer to the complaint. The Estate later filed a motion to dismiss counts II and V (the wilful and wanton counts), alleging that the Survival Act (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 27-6 (now 755 ILCS 5/27-6 (West 1994))) only allows the recovery of compensatory damages where either the victim or the tortfeasor is deceased. Thereafter, the plaintiffs sought leave of court pursuant to section 2-604.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-604.1 (now 735 ILCS 5/2-604.1 (West 1994))) to make a claim for punitive damages. Following briefing and argument, the court entered an order granting the plaintiffs leave to seek punitive damages. The Estate's motion to dismiss was denied.

Defendants Romanik and Harper each filed a motion for summary judgment as to the dramshop actions. The trial court granted the motions.

Prior to trial, the plaintiffs settled their claim against Page. Because of the partial settlement and prior summary judgments entered by the court, the case proceeded to trial with the Estate as the sole defendant.

A jury trial was held, and on September 15, 1994, the jury returned verdicts awarding compensatory damages to the plaintiff Walpole in the amount of $191,392.06 and to plaintiff Penberthy in the amount of $578,362.52.

On September 16, 1994, the jury returned a verdict awarding punitive damages against the Estate in the amount of $100,000.

The Estate filed a posttrial motion asking the court to set aside or reduce the punitive-damage award or, in the alternative, grant the defendant a new trial. The Estate's posttrial motion was denied. The Estate filed a timely notice of appeal.

The Estate contends that punitive damages were improperly awarded to the plaintiffs in this case, claiming that punitive damages are not recoverable from a deceased tortfeasor's estate. We believe that it is important to begin this discussion by tracing the growth of the law on the subject of survival of actions.

"The common law of England *** shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority." 5 ILCS 50/1 (West 1994). At common law, personal actions, arising ex delicto, died with the person and did not survive to the representatives. Holton v. Daly, 106 Ill. 131, 136 (1882), overruled on other grounds in Murphy v. Martin Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583 (1974); see also McDaniel v. Bullard, 34 Ill. 2d 487, 493, 216 N.E.2d 140, 144 (1966). "Under the common law rule the death of either party at any stage of the proceedings abated the action." Wilcox v. Bierd, 330 Ill. 571, 583, 162 N.E. 170 (1928). Blackstone stated that "in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, *** the rule is, that actio personalis moritur cum persona [a personal right of action dies with the person]; and it never shall be revived, either by or against the executors or other representatives -- for neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong and injury." (Emphasis added.) Holton, 106 Ill. at 136. In 1872, a statute was passed allowing, in addition to the actions that survived by the common law, certain actions therein named, including "actions to recover damages for an injury to the person, except slander and libel." Holton, 106 Ill. at 139. This statute, commonly known as the Illinois Survival Act (755 ILCS 5/27-6 (West 1994)), allows an "action to recover damages for an injury to the person." Under Illinois law, punitive damages are not generally recoverable under the Survival Act in actions based solely upon the common law. Ballweg v. City of Springfield, 114 Ill. 2d 107, 117, 499 N.E.2d 1373, 1377, 102 Ill. Dec. 360 (1986); Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 33, 330 N.E.2d 509, 511 (1975). There are exceptions to this rule which will be discussed later in this ...


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