dissenting:
I respectfully dissent.
It is readily evident that this case was tried under an erroneous theory of law and that, although it was a nonjury trial, such event may well have affected the outcome.
Plaintiff’s proper cause of action would be the tort of battery or, as it is sometimes called, assault and battery. (Parrish v. Donahue (1982), 110 Ill. App. 3d 1081, 443 N.E.2d 786; Restatement (Second) of Torts sec. 13 (1965).) In this case plaintiff filed a two-count complaint, one based on negligence and the other on wilful and wanton misconduct. The plaintiff alleged in the negligence count that he was in the exercise of ordinary care and in the wilful-wanton count that he was free from any contributory wilful and wanton conduct. Irrelevant and misleading issues were injected into the case by the negligence and wilful-wanton forms of action, and I would reverse and remand for a repleader (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 612(a)) and for a retrial. People v. Francis (1978), 73 Ill. 2d 184, 383 N.E.2d 161; Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 322 N.E.2d 5.
The problem with the incorrect form of action is reflected and exacerbated by the trial court’s judgment. It found, with reference to the contributory fault of the plaintiff, that plaintiff may be considered a “neighborhood busybody” and that “as such, the Plaintiff’s actions cannot be considered as sufficient evidence raising his conduct to contributory fault or reckless and wilful contributory fault.” After that the trial court found for the plaintiff on both counts I (negligence) and II (wilful and wanton conduct). Plaintiff was awarded $30,000 compensatory damages under count I and $30,000 punitive damages under count II. There was no award of compensatory damages for wilful-wanton conduct under count II. Thus, the judgment violates the long standing rule in Illinois that in the absence of an award of compensatory damages, there can be no award of punitive damages. Freese v. Tripp (1873), 70 Ill. 496; In re Application of Busse (1984), 124 Ill. App. 3d 433, 464 N.E.2d 651; Lowe v. Norfolk & Western Ry. Co. (1981), 96 Ill. App. 3d 637, 421 N.E.2d 971; Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454, 300 N.E.2d 616.
I further disagree with the majority in its affirmance of the award of $30,000. The purpose of punitive damages is punishment and deterrence. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) Because of their penal nature, punitive damages are not favored in law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) In this case the award of $30,000 in punitive damages is excessive and violative of the principle that civil courts may not add to the pains and penalties of crimes. The defendant in this case had already been convicted of a crime and punished for his wrongful act. Therefore, the policy of punishment and deterrence that underlies the award of punitive damages is twice served, and plaintiff has been unjustly privately enriched. I see the situation presented as being similar to that considered by the supreme court in Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, where, in an action by a wife for punitive damages for loss of consortium, the court refused punitive damages, stating:
“Such an additional award [to a husband’s recovery of punitive damages in his personal injury action] would not serve to punish or deter the defendant who had already been punished in the first action. Rather, it would clearly result in a double windfall to the injured party and the spouse.” 97 Ill. 2d 195, 212, 454 N.E.2d 210, 219.
Finally, although it is a matter of little import, I take issue with that portion of the majority opinion that states that defendant’s training in personal combat techniques taught him how to use a shovel as an offensive weapon to its best advantage. Presumably he did have such knowledge, but he did not put it to use in his battery of the plaintiff. The blows were apparently struck using the flat side of the shovel. Personal combat training teaches that maximum effect is achieved with a shovel-weapon when striking with the edge of the shovel, as with an axe.
I would reverse and remand for a repleader and a new trial.