dissenting:
This is a companion case to Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127. In addition to the reasons stated for my dissent in Churchill, there are several issues here which will require additional comment.
Here, the majority opinion permits the recovery of punitive damages authorized by section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) by the decedent’s estate through the use of the Survival Act (Ill. Rev. Stat. 1969, ch. 3, par. 339, now Ill. Rev. Stat. 1977, ch. 110½, par. 27—6). In Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 33, this court stated, in speaking of the Survival Act, “ [t] his statute has never been thought to authorize the award of punitive damages.” The majority opinion in the case we are now considering attempts to distinguish that holding by pointing out that in Mattyasovszky recovery of common law punitive damages was sought, whereas in this case, statutory punitive damages, as authorized by section 73 of the Public Utilities Act, are involved.
I do not understand the relevance of this distinction. The majority correctly states that the Survival Act “is merely the vehicle by which the cause of action, created by the Public Utilities Act, survives the death of the injured person.” (73 Ill. 2d at 174.) I cannot understand how this vehicle can safely carry over to the decedent’s estate a cause of action that he had before his death, for punitive damages under section 73 of the Public Utilities Act, but cannot carry over to his estate one that he may have had for punitive damages by virtue of some common law outrageous conduct not specifically condemned by statute. There is nothing in section 73 that would show a legislative intent that punitive damages under the Act should survive the death of the injured party, nor is there anything in the Survival Act that would indicate that statutory punitive damages should survive but that common law punitive damages should not. It appears to me that if the Survival Act is a sufficient vehicle for preserving a cause of action for statutory punitive damages, it should also be capable of preserving a cause of action for common law punitive damages. Conversely, if its language is not broad enough to permit the survival of a cause of action for common law punitive damages, then it is likewise not broad enough to permit the survival of a statutory cause of action for punitive damages.
The only construction that has ever been placed on our Survival Act by this court is that it does not authorize the award of punitive damages. In Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, this court held that actions for predeath injuries survive under the Survival Act so that a wrongdoer may not escape liability for a portion of the damages he caused and so that there may be full recovery for the injuries and damages occasioned by the wrong. The holding of this case spoke of the compensatory nature of the recovery permitted under the Survival Act. It lends no support to the holding of the majority opinion in our case. Also, contrary to a statement in the majority opinion, this court, in Mattyasovszky did not summarily deny recovery of punitive damages because the Survival Act “has never been thought to award punitive damages.” Mr. Justice Schaefer, writing for this court, after setting forth the provisions of the Survival Act, noted that this court, in Murphy, had emphasized the compensatory nature of the damages authorized, and noted that there was nothing in Murphy which would suggest a change in the law of this State, which for more then 100 years has limited recovery under the Act to compensatory damages. Then after rejecting decisions of other States which had construed the language of their survival acts as allowing recovery of punitive damages, the court stated:
“The actions which survive under our statute are ^actions to recover damages for an injury to the person,’ and as we have pointed out, the very decisions that have recently expanded the right to recover under it have emphasized the compensatory nature of the recovery it authorizes.” 61 Ill. 2d 31, 34.
If it is the intention of the majority of this court to overrule Mattyasovszky, it would have been more candid in this case to face the question of the survival of punitive damages squarely instead of drawing a distinction which does not exist between statutory and common law punitive damages. With the foundation of Mattyasovszky so weakened, we can expect soon another assault upon the principles therein announced.
It is true that the purposes of awarding punitive damages, punishment and deterrence, are capable of being fulfilled by permitting actions for punitive damages to survive the death of the injured party. (See Riley, Punitive Damages: The Doctrine of Just Enrichment, 27 Drake L. Rev. 195, 206 (1978).) However, the purposes of punishment and deterrence do not fall within the acknowledged and established purpose of the plain language of our Survival Act, which is to compensate the estate of the decedent for the damages and injuries he suffered prior to death.
A very serious error in the opinion in this case involves the judicial transformation of a cause of action for wrongful death into one under the Survival Act. The opinion acknowledges that one paragraph of count IV recites that the cause of action is brought under both the Wrongful Death Act and the Public Utilities Act. But then the court finds that since the decedent lived for a period of time and had some very serious injuries, there were predeath injuries for which his estate should recover under the Survival Act. Count IV, under which punitive damages were sought, was an action for wrongful death and was not an action by the administrator for the benefit of the decedent’s estate. One has only to look at the entire amended complaint to realize the nature of the cause of action under count IV. Count I is a wrongful death action by the administrator in which it is alleged that the decedent left surviving him his widow and two adult children as his next of kin. And it is alleged in that count that the action is brought under Illinois Revised Statutes, chapter 70, paragraphs 1 and 2 (the Wrongful Death Act).
Count II is an action by the widow alone, brought under the family expense statute. Counts III and IV were added as an amendment to the complaint. Count III is by the administrator and it alleges, as did count I, that the decedent left surviving him his widow and two adult children as his next of kin, and then alleges, as did count I, that the action was brought under Illinois Revised Statutes, chapter 70, sections 1 and 2, and added that it was also brought under chapter 111 2/3, section 77 of the Illinois Revised Statutes. This last statutory provision is section 73 of the Public Utilities Act. Thus, this count was an action for wrongful death based on the defendant’s violation of the Public Utilities Act. This count sought only compensatory damages. Count IV also alleged that the decedent left surviving him his widow and two adult children as his next of kin, the same allegations as were contained in the wrongful death action in count I and the wrongful death action in count III.
Paragraph 7 of count IV again specifically alleges, as did count I and count III (both wrongful death counts), that the action was brought under Illinois Revised Statutes, chapter 70, sections 1 and 2, and added that it was also brought under chapter 111 2/3, section 77, Illinois Revised Statutes, which is section 73 of the Public Utilities Act. Count IV, in addition to praying compensatory damages, as had been prayed in count I and count III, prayed for punitive damages. Paragraphs 1 and 2 of chapter 70, Illinois Revised Statutes, are a part of the Wrongful Death Act, and in count IV the action was brought under the Wrongful Death Act, seeking compensatory and punitive damages for the wrongful death resulting from a violation of the Public Utilities Act. There is no reference in the complaint to the Survival Act, nor is there any allegation that the administrator is seeking recovery for predeath injuries for the benefit of the decedent’s estate.
Although actions under the Wrongful Death Act and under the Survival Act are both maintained by the decedent’s representative, the recovery under the Wrongful Death Act is for the benefit of the widow and next of kin, and does not become a part of the decedent’s estate. Distribution of the award is made by the court according to the degree of dependency.
Thus, in this case, the decedent, having left a widow and two adult children, the court would undoubtedly distribute a substantial amount of the wrongful death recovery to the decedent’s widow.
If the decedent’s representative recovers under the Survival Act, the recovery becomes a part of the decedent’s estate and subject to the obligations of the estate and to distribution according to statute or a will. The widow and two adult children of the decedent would take their distributive shares of the estate, which could be substantially different from that each would receive under the Wrongful Death Act. Of course, if the decedent left a will, the children could be eliminated entirely from participation in the recovery. The very theory of recovery and the elements of damages are different under the two acts and there are different tax consequences. Each act creates a separate and distinct cause of action, each filling different, although at times, complementary purposes.
When count IV alleged that the cause of action was brought under paragraphs 1 and 2 of chapter 70, Illinois Revised Statutes, that allegation can only mean that the cause of action is one for wrongful death for the benefit of the widow and next of kin, who were named in the allegations in that count. The jury returned a verdict of $300,000 under the prayer of this count. I know of no statutory, constitutional, or even inherent power that authorizes this court to take this $300,000 verdict away from the widow and next of kin and vest it in the decedent’s estate.
It is apparent to me that the majority opinion recognized that section 2 of the Wrongful Death Act authorizes only the recovery of fair and just compensation for the pecuniary injuries resulting from the death and does not authorize the recovery of punitive damages. Realizing this, the opinion, in an attempt to preserve the recovery of punitive damages, has transformed the Wrongful Death Act into one maintained under the Survival Act. No matter how flagrant a defendant’s conduct may be, and no matter how justified may be an award of punitive damages, a court has no authority, simply because punitive damages cannot be awarded under the Wrongful Death Act, to restructure the entire case solely to preserve the verdict against the defendant.
Something more than the mere commission of a wrong is required for punitive damages. ‘There must be circumstances of aggravation or outrage, such as spite or ‘malice’, or a fraudulent or evil motive on the part of the defendant ***” (Prosser, Torts sec. 2, at 9-10 (4th ed. 1971)). Under section 73 of the Public Utilities Act punitive damages may be awarded only when the violation or omission is “wilful.” The evidence in this case shows no such wilful or outrageous conduct on the part of the defendant.
The majority only assumes that the obstructions were on the defendant’s right-of-way. The opinion seems to place the burden on the railroad to prove that the obstructions were not on its right-of-way when, in fact, the burden is on the plaintiffs to prove that the obstructions were on the defendant’s right-of-way, and that there was a wilful violation on the part of the railroad in its failure to remove the obstructions. The record shows that the obstructions consisted of trees and shrubbery, and 3 feet 10 inches of a house. These obstructions are located on property that is owned by an individual and the record traces his title back to a conveyance in 1923 and is silent as to the title prior to that time. Nothing in this case shows that the property on which these obstructions are located constituted the defendant’s right-of-way since then. The opinion refers to a station map dated 1919 which shows that the right-of-way included the property on which the obstructions are located; however, the burden is on the plaintiff to show that the obstructions were on the defendant’s right-of-way on the date of the accident and not in 1919. Even the 1919 station map relied upon by the majority opinion shows a fence within the right-of-way, which indicates that even at that time, at least part of the property upon which the obstructions are located was fenced off from the right-of-way. Furthermore, I would not consider the failure of the railroad to cut the trees and shrubbery of the owner of the property, or the failure to remove 3 feet 10 inches of his house as constituting the outrageous or wilful conduct necessary to support an award of punitive damages.
For these reasons above stated, I dissent from the majority holding.
MR. JUSTICE UNDERWOOD joins in this dissent.