concurring in part and dissenting in part:
I agree with the decision of the majority to remand with directions to enter a judgment in favor of plaintiff, as administrator, for compensatory damages in the amount of *45,000 and to enter a judgment in favor of plaintiff individually in the sum of *1,600 compensatory damages. I disagree with the decision to order the entry of a judgment in favor of plaintiff individually for punitive damages in the sum of *600,000.
I find nothing in the opinion in Murphy v. Martin Oil Co. (1974), 256 Ill. 2d 423, 308 N.E.2d 583, which I consider to raise serious questions as to the continued validity of the doctrines espoused by this court in Baird v. Chicago, Burlington & Quincy R.R. Co. (1973), 11 Ill. App. 3d 264, 296 N.E.2d 365. In Holton v. Daly (1882), 106 Ill. 131, the court had ruled that, despite the apparently clear wording of the Survival Act, actions against a tortfeasor for damages incurred by a deceased as a result of an injury caused by a tortfeasor did not survive and pass to the deceased’s personal representative if the deceased later died from those injuries. The rationale of the decision was that a suit for the injuries and a suit for the wrongful death would seek recovery for the same wrongful act and that the Wrongful Death Act was intended to be the sole means of recovery permitted to arise from the wrongful act causing the death. The Wrongful Death Act permitted only recovery for the pecuniary loss to the next of kin as a result of the death and permitted no recovery for damages incurred by the decedent in his lifetime. Recognizing the unfairness of a rule which prevented recovery for pecuniary loss, the supreme court ruled in Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 168, that a surviving spouse made liable by statute (Ill. Rev. Stat. 1955, ch. 68, par. 15) for the medical expenses and funeral bills for a tortiously killed spouse had a common law action against the tortfeasor to recover for the financial liability imposed upon her. Murphy went one step further than Saunders v. Schultz by ruling directly that a decedent’s cause of action for medical expense, loss of wages and pain and suffering survived his death and passed under the Survival Act to his personal representative even though the decedent died from the very injuries that gave rise to the cause of action.
Baird, on the other hand, ruled that punitive damages could not be recovered in an action brought under the Wrongful Death Act by a complaint alleging that the death arose as a result of a defendant’s wilful violation of section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77). Although the opinion in Murphy stated that justice required full liability as well as full compensation, that same court in Mattyasovszky made clear that it was speaking only with reference to compensatory damages in Murphy and did not intend to indicate that abatement of an action for punitive damages would be prevented by the Survival Act. Much of the opinion in Mattyasovszky was devoted to whether the court should establish a common law action for wrongful death which included a right to recover punitive damages. The opinion questioned the general desirability for actions for punitive damages and determined that no such action should be judicially created. I thus consider Baird to be unimparied by subsequent precedent.
The majority correctly points out that recovery of punitive damages by plaintiff under count VIII is not dependent upon punitive damages being either recoverable under the Wrongful Death Act or being given continued fife by the Survival Act. Indeed, the Survival Act is not in issue here because the decedent apparently died instantly and thus was not possessed during his lifetime of a cause of action arising out of the occurrence. Plaintiff’s ingeneous theory for recovering under count VIII is analogous to the common law cause of action created by the opinion in Saunders v. Schultz. She contends that the defendant railroad’s wilful violation of Rule 205 caused the death of her husband and thus caused her to become liable in the sum of *1,600 for the funeral bill of decedent. She further contends that she thereby became a person “affected” by the wilful violation within the meaning of section 73 of the Public Utilities Act and entitled to sue for compensatory damages in the sum of *1,600 and for punitive damages. The question of whether plaintiff’s recovery under count VIII should have been permitted to stand is largely a question of statutory construction and a close question. The word “affected” is ordinarily given a broad meaning. Nevertheless, I do not think that the legislature intended to provide in section 73 for a cause of action for one in plaintiff’s situation.
Section 73 is still in its original form as enacted in 1921, long before the decision in Saunders v. Schultz. In determining the meaning which the legislature intended to give the word “affected,” the following statement of the supreme court in Hall v. Gillins (1958), 13 Ill. 2d 26, 30, 147 N.E.2d 352, 355, is informative:
“It is possible, of course, to contemplate a system of law that would, in the case of a death caused by the wrongful conduct of another, impose liability upon the wrongdoer in favor of all persons whose rights were affected in any degree. But the common law has characteristically imposed close limits upon the parties entitled to sue.”
Similarly, not only in the Wrongful Death Act but also in the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 69), the Coal Mining Act (Ill. Rev. Stat. 1975, ch. 93, par. 10.07) and the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135), the legislature, in creating actions arising because of the death of another, has imposed close limits upon the parties entitled to sue and usually as to the measure of recovery. In view of this history, I do not believe that the legislature intended in 1921 to create a cause of action under section 73 which would (1) give a separate right to a personal representative or next of kin to sue for a death caused by a violation of the Act or (2) give a right to sue to an individual made hable to pay funeral expenses resulting from a death caused by a violation of the Act. I conclude that the term “affected” was used because section 73 provided not only for actions concerning safety violations but also for actions concerning quality of service furnished, use of facilities and other matters that do not involve rate reparations.
From the decisions in Saunders v. Schultz, Murphy, and the cases cited in those opinions, a body of law has developed which permits fuller recovery of compensatory damages incurred because of a tortiously caused death. To now rule that a person in plaintiff’s situation was a person “affected” by the section 73 violation would do nothing to further that trend because plaintiff can already recover full compensation for the funeral bill by the type of common law action authorized by Saunders v. Schultz. She did so here. The evidence in the instant case of gross misconduct upon the part of the defendant railroad’s employees in continuing to improperly place cars near the crossing despite repeated warnings makes this case an attractive vehicle to similarly expand the opportunities for the recovery of punitive damages. I do not interpret Mattyasovszky as indicating that public policy favors such an expansion, however.
Since compensatory damages can be obtained against a railroad in a crossing case in an ordinary negligence action, section 73 is of significance largely because of the provision for punitive damages for a wilful violation. I think that it is very clear that in enacting the section, the legislatures did not intend to create an action for wrongful death in the personal representative or next of kin of a deceased as “affected” persons. That the legislature did not intend to create the type of action brought here is less clear and presents a closer question. To permit punitive damages to be recovered in the latter type of case and not in the former would present a confusing situation. The instant jury was apparently subject to this confusion because it awarded compensatory damages upon count VIII not merely for the sum of the *1,600 funeral bill but in the amount of *45,000, the same sum as was awarded for the wrongful death. It thus appears that the jury was awarding punitive damages not merely for injuring plaintiff by subjecting her to liability for the funeral bill but for all her injuries resulting from her husband’s death. Avoidance of such confusion is a further reason not to now construe section 73 as permitting the action brought by count VIII.
Accordingly, I concur in the disposition made by the majority in all respects except that I would affirm the action of the trial court in setting aside the award of punitive damages. To that extent I dissent.