dissenting:
In this case, and in National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, we have been called upon to define the proper office of punitive damages, under the Public Utilities Act in particular (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77), and to consider the incidental relationship of punitive damages under that Act to recovery under the Survival Act (Ill. Rev. Stat. 1969, ch. 3, par. 339, now Ill. Rev. Stat. 1977, ch. 11014, par. 27 — 6) and the right of recovery for expenses incurred under the family expenses statute (Ill. Rev. Stat. 1969, ch. 68, par. 15, now Ill. Rev. Stat. 1977, ch. 40, par. 1015). This we are required to objectively do in the emotionally charged climate of two wrongful deaths, keeping in mind that unlike the verdict of a jury, the decisions we reach not only define the law of these cases, but stand as precedent for future related matters which may be less appealing to one’s sympathies. I feel that a majority of my colleagues have failed in their performance of this charge and have either intentionally or inadvertently radically departed from principles of law that have had a long history of acceptance, which departure, I fear, will invite further assaults upon accepted limitations on punitive damages and on recovery for wrongful death. I must therefore dissent.
It is not necessary in this dissent to present the complete historical metamorphosis of the doctrine of punitive damages. It is sufficient to note that such damages were early considered in the nature of a compensatory award, then as a combination of compensatory and punitive, and finally, in a majority of jurisdictions, as purely punitive. Although a few jurisdictions still consider the compensatory role of exemplary or punitive damages, since the concept of actual damages has been broadened to include intangible harm, the originally compensatory function of exemplary or punitive damages in most instances has been fulfilled by actual damages. Therefore, most courts today speak of exemplary or punitive damages exclusively in the terms of punishment and deterrence. Illinois has followed this historical development to this conclusion. (Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957).) Although it is well settled that punishment and deterrence are the objectives of punitive damages, the circumstances that warrant such an award are not clear. (McKillip, Punitive Damages In Illinois: Review And Reappraisal, 27 DePaul L. Rev. 571 (1978).) I fully agree with the remark of one author who stated that “[t]he punitive damages doctrine, reasonably identifiable at its core, is highly nebulous at its margins” (Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L. Rev. 870, 871 (1976)).
The doctrine of exemplary or punitive damages has been severely criticized and four states have, by judicial decisions, completely rejected it. Statutes in some States have eliminated such damages in certain situations. (See e.g. Ill. Rev. Stat. 1977, ch. 40, par. 1803 (breach of promise); Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 518 (1957).) The doctrine of punitive damages is not favored by law (Brown v. Coates (D.C. Cir. 1958), 253 F.2d 36, Annot., 67 A.L.R.2d 952 (1959)), and the power of giving punitive damages should be exercised with great caution and they should be properly confined within the narrowest of limitations (J. Stein, Damages and Recovery, Personal Injury and Death Actions sec. 183 (1972)).
Not only does the established authority require that punitive damages be confined to the narrowest limits but in our cases we are considering the allowance of punitive damages as provided for in the provisions of section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77). Being statutory in nature, there are further limiting considerations. This court has held that the Public Utilities Act is in derogation of the common law and nothing is to be read into it by intendment (Consumers Sanitary Coffee & Butter Stores v. Commerce Com. (1932), 348 Ill. 615, 618). In Anderson v. Board of Education (1945), 390 Ill. 412, 422, this court held that a statute creating a new liability must be strictly construed in favor of the persons sought to be subjected to its operation. Section 73 of the Public Utilities Act creates a statutory authorization for the award of punitive damages and in our cases under these authorities must be strictly construed in favor of the railroad.
In spite of these accepted principles requiring a narrow application of the allowance of punitive damages and a strict construction of section 73, the opinions in this case and in National Bank of Bloomington leave me with the distinct impression that the majority of this court has been deliberately searching for some basis which logically will support awards of punitive damages and, at the same time, circumvent the prohibition previously acknowledged by this court against the awarding of punitive damages under the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq.), and under the Survival Act (Ill. Rev. Stat. 1977, ch. 11014, par. 27—6). In this case, the opinion finds that the family expense statute (Ill. Rev. Stat. 1969, ch. 68, par. 15, now Ill. Rev. Stat. 1977, ch. 40, par. 1015) provides the means for awarding punitive damages for a wrongful death. I am convinced that by the use of this device and the strained construction of the Survival Act in National Bank of Bloomington, these opinions have opened the door for the award of punitive damages in almost every wrongful death action involving a public utility and for an assault generally upon the prohibition against punitive damages in wrongful death cases in general. As appealing, and possibly as justified, as that result may be, it is a change which the legislature should make in the Wrongful Death Act, which has always spoken strictly in terms of compensatory damages and has been so construed.
Although the opinion speaks of the “very real damages” Mrs. Churchill suffered in the amount of $1,600 property damages as a consequence of her husband’s death, as being the basis for punitive damages, there can be no doubt that punitive damages in this case were not awarded to her because of the conduct of the railroad in causing her a $1,600 property loss. The punitive damages were awarded to her because her husband was killed as a result of the alleged wrongful conduct. If the jury were to consider a $1,600 property loss of the wife, divorced from any consideration of the wrongful death of her husband-let us say for damages to her automobile in that amount — an award of $600,000 punitive damages would be ludicrous.
The jury in this case, being unfamiliar with the niceties of the distinction between an award for family expenses and an award for wrongful death, plainly awarded punitive damages for the wrongful death and not for the wife’s property damage. Counts I and II were both wrongful death counts and in both the jury awarded $45,000. Count VII was an action by the wife individually to recover expenses for which she was obligated under the family expense statute. The jury awarded her $1,600. In count VIII the wife sought recovery for her expenses under the family expense statute, as she did in count VII, and also for punitive damages. The jury verdict in this count awarded compensatory damages, not in the amount of $1,600 which they allowed in count VII, but $45,000, which was the amount of damages they awarded for wrongful death in counts I and II. They then added to this amount $600,000 punitive damages. Plainly, the jury awarded punitive damages for wrongful death and not because the wife had suffered “very real damages” under the family expense statute.
Generally, punitive damages are allowed only to the immediate person receiving the injury. (Fleming Oil Co. v. Watts (Tex. Civ. App. 1946), 193 S.W.2d 979; People v. Superior Court of Los Angeles County (1973), 9 Cal. 3d 283, 507 P.2d 1400, 107 Cal. Rptr. 192; Dugar v. Happy Tiger Records, Inc. (1974), 41 Cal. App. 3d 811, 116 Cal. Rptr. 412; French v. Orange County Investment Corp. (1932), 125 Cal. App. 587, 13 P.2d 1046; 22 Am. Jur. 2d Damages sec. 254; J. Stein, Damages and Recovery, Personal Injury and Death Actions sec. 189 (1972).) The majority opinion holds that the wife can recover punitive damages because of her obligation to pay the expenses occasioned by her husband’s death; however, it has been held in an action for consequential damages resulting from the injury to a wife that the husband can recover compensatory damages only, and cannot recover punitive damages. (Martin v. Story (Fla. Dist. Ct. App. 1957), 97 S.2d 343; Moran v. Stephens (Fla. Dist. Ct. App. 1972), 265 S.2d 379; 41 Am. Jur. 2d Husband and Wife sec. 455.) In Hughey v. Ausborn (1967), 249 S.C. 470, 154 S.E.2d 839, the husband sought to recover punitive damages for medical expenses incurred by him as a result of injuries to his wife and son in an automobile accident. The Supreme Court of South Carolina held that punitive damages could be recovered only by the parties directly injured, the wife and son. The father’s recovery for the consequential damages he suffered as a result of those injuries was confined to his pecuniary loss, and he could not recover punitive damages. This appears to be the holding in most of the jurisdictions that have considered this question. (See Annot., 25 A.L.R.3d 1416 (1969).) It was also the holding in an early Illinois appellate case. In Baltimore and O. S.-W. Ry. Co. v. Keck (1899), 89 Ill. App. 72, a father sought to recover damages he suffered as a consequence of an injury to his son when the son’s foot caught in a railroad crossing and he was injured by an oncoming train. The court held that the father was entitled to recover only the loss he sustained on account of the injury to his son, including medical expenses. He could not recover exemplary damages.
The recovery in our case is sought not under the common law but under the provisions of section 73 of the Public Utilities Act, which provides that in the event of a violation of the Act or of a rule, regulation, order or decision of the Commission by the public utility, it shall be liable “to the persons or corporations affected thereby” (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77) and if the act or omission is found to be wilful, exemplary damages may be awarded. This provision presents the question of whether the limitations on the award for punitive damages under the common law, as stated in the authorities cited above, prohibit the recovery of punitive damages under the Act by those who have suffered only consequential damages as a result of a violation by the utility.
Although I have found no cases directly in point, there are several cases which hold that statutes similar to section 73 of our Public Utilities Act are merely declarative of the common law and confer no right upon citizens which they would not already have by reason of the common law. This was the holding in Cole v. Arizona Edison Co. (1939), 53 Ariz. 141, 86 P.2d 946, in which the Arizona Supreme Court construed a statute of that State which was almost identical to section 73 of our Public Utilities Act. That statute is now found in 12 Arizona Revised Statutes Annot., sec. 40—423. Also, in Downs v. Sulphur Springs Valley Electric Cooperative, Inc. (1956), 80 Ariz. 286, 297 P.2d 339, the Supreme Court of Arizona again construing the same statute, stated that in a tort action based on negligent conduct the statute merely reaffirms and reiterates the common law. Indiana has a statutory provision similar to our section 73 except it does not provide for the recovery of punitive damages. (Ind. Code Ann. 1973, sec. 8—1—2—107.) In Trustees of Jennie De Pauw Memorial Methodist Episcopal Church v. New Albany Waterworks (1923), 193 Ind. 368, 140 N.E. 540, the Supreme Court of Indiana held that the statute would not enlarge the rights possessed under the common law. In H.R. Moch Co. v. Rensselaer Water Co. (1928), 247 N.Y. 160, 159 N.E. 896, in construing the provisions of a New York statute which imposed a duty upon the utility to furnish water upon demand, Chief Justice Cardozo, writing for the court, stated that if the defendant may not be held for a tort at common law, there was no reason for holding that it may be held under the statute.
The general rule is that statutes authorizing the recovery of punitive damages must be strictly construed and that such damages cannot be awarded unless the giving provision of the statute expressly or by clear implication confers the right to such damages. (Downs v. Sulphur Springs Valley Electric Cooperative; Stein, Damages and Recovery, Personal Injury and Death Actions sec. 183 (1972).) The majority opinion in our case finds that Mrs. Churchill is a “person affected” by a violation of the Act because of her “very real damages” under the family expense statute. (73 Ill. 2d at 139-40.) The Public Utilities Act should not be so broadly construed. The damages she suffered were only consequential damages which, under the common law, would not support an award of punitive damages. The term “affected” by a violation is used in the Act instead of the words “injured” or “damaged” because of the many kinds of activities covered by the Public Utilities Act and the regulations. Certainly, it was not the intention of the legislature to extend the right to recover under section 73 to every person or corporation that may be consequentially “affected” by a violation of the Act. The term “affected” under the general rule, should be narrowly construed to mean no more than the person directly injured or “affected” as a result of the violation. If we extend the right of recovery, as did the majority opinion, then in the event that Mr. Churchill would not have been killed, he could have maintained an action under section 73 for punitive damages because of his direct injury, and his wife, as one “affected” by virtue of her consequential damages would have an equal right to maintain an action for punitive damages. The language of the statute does not expressly, or by clear implication, grant the right to punitive damages or even the right to maintain an action for damages to those who are only indirectly or consequentially “affected.” I do not believe that, through construction, the right of action under section 73 should be extended that far.
All of the authorities referred to above establish the principles that .punitive damages are to be narrowly awarded; that penal statutes and statutes in derogation of the common law are to be strictly construed, and that punitive damages provided by statute should not be awarded unless the statute expressly, or by clear implication, confers the right to such damages. These established principles lead me to the conclusion that punitive damages under section 73 should be awarded only to those who are directly or immediately injured by the violation and not to those who are only consequentially affected, as was Mrs. Churchill in this case. As for her right to recover her consequential damages, this right she possesses under the common law by virtue of the wrongful injury and death occasioned by the railroad.
Not only is a limited application of the Act, which I urge, in keeping with the generally accepted principles noted above, but there is no need for a more expansive interpretation. We should keep in mind that punitive damages are not compensatory, but are awarded solely to punish the utility for the conduct which caused the injury and to deter it and others from similar conduct in the future. The recovery of punitive damages, therefore, constitutes a windfall to a recipient. It is my belief that such a windfall should be awarded only to those who are directly injured as a result of the violation and not to someone who is only consequentially affected. This is particularly true where there are other adequate means of accomplishing the same twin purposes of punishment and deterrence. Why should a person who suffers a $1,600 property loss as a consequence of a direct injury to someone else receive a windfall of $600,000 when by a proper enforcement of existing statutes the penalty could be recovered for the benefit of the public?
Deterrence or a prevention of the wrongfull conduct under the facts of our case can be accomplished by the use of section 75 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 79), which authorizes the Commerce Commission to bring an action for mandamus or injunction against a public utility for the purpose of stopping or preventing any violation. Not only is the Commission authorized to do this, but the statute states the Commission shall commence an action in such cases. If the Commission fails to take the necessary steps to prohibit the violation it would appear that an action for mandamus would lie to compel it to do so. See City of Wheaton v. Chicago, Aurora and Elgin Ry. Co. (1954), 3 Ill. App. 2d 29; People ex rel. Schweder v. Brady (1915), 268 Ill. 192.
The objective of punishing the railroad for such violations can be accomplished by the use of sections 76 and 77 of the Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, pars. 80, 81), which provide that public utilities may be fined not less than $500 nor more than $2,000 for each offense; that every violation shall constitute a separate offense; and in case of a continuing violation, each day’s continuance shall be a separate and distinct offense. If, as plaintiff contends in support of the charge that this was an aggravated situation, the railroad has permitted the obstruction of this crossing for a number of years, the fine assessable under sections 76 and 77 could be as much as, if not more than, the punitive damages awarded in this case. In view of the availability of these adequate means of accomplishing the objectives of deterrence and punishment, I cannot see the necessity of diverting the penalty from the public treasury and conferring it in the form of a windfall award of $600,000 on a person who has suffered only a consequential property damage of $1,600.
Although the question concerning the verdict is not within the primary thrust of this dissent, I wish to briefly again refer to the confusion of the jury as manifested by the verdict returned as to count VIII. As previously noted, the verdict indicates that punitive damages were allowed for wrongful death and not for the family expenses incurred by the wife. The majority opinion, in what I consider to be a rather cavalier manner, simply struck that portion of the verdict that awarded $45,000 compensatory damages and permitted the remainder of the verdict to stand. A court has no authority to amend a verdict as to a matter of substance (89 C.J.S. Trial sec. 515), such as here striking the award of all compensatory damages. An amendment must be such as to make the verdict conform to the real intent of the jury. The jury’s actual intent, and not the court’s idea of what the jury ought to have intended, is the end that must be accomplished by the amendment. (Roadruck v. Schultz (1948), 333 Ill. App. 476.) The fact that the jury awarded punitive damages in conjunction with compensatory damages of $45,000 and not $1,600 clearly shows that the punitive damages were awarded for wrongful death. The majority opinion justifies the amendment by stating that “[t]he jury clearly intended to award plaintiff punitive damages.” (73 Ill. 2d at 148.) With this I agree, but the jury, at least as I see it, plainly intended to award those punitive damages to the plaintiff for wrongful death of her husband. I fear that this opinion establishes dangerous precedent concerning authority of a court to tamper with and alter verdicts, and to invade the province of the jury.
In conclusion, to avoid a misconception, I wish to state that I do not oppose the general principle of punitive damages, nor do I join in their general condemnation. (See Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L. Rev. 870, 888 (1976).) In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 1 authored an opinion which created a cause of action for punitive damages in a factual situation wherein I felt they were required. In situations where the conduct is reprehensible and the penalties otherwise provided are inadequate to either deter or to punish, punitive damages may serve a useful public purpose. Since their purpose is to serve the public functions of punishment and deterrence and not the private purpose of compensation to an injured person, I do not believe punitive damages should be awarded as a windfall to someone who is not directly injured by the extreme conduct which is the basis for the award. Therefore, attempting to view this case objectively, divorced from any consideration of the wrongful death involved, I cannot agree with the expansive treatment accorded section 73 of the Public Utilities Act by the opinion of this court.
MR. JUSTICE UNDERWOOD joins in this dissent.