LOIS A. CHURCHILL, Indiv. and as Adm‘r, Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY et al.—(Norfolk & Western Railway Company, Appellant.)
No. 49421
Supreme Court of Illinois
October 6, 1978
Rehearing denied December 1, 1978
73 Ill. 2d 127
Thomas F. Londrigan, of Londrigan & Potter, P.C., of Springfield, and Robert H. Brunsman, of Brunsman, Crain, Kenney & Pearson, of Springfield, for appellee.
Francis D. Morrissey and Edward J. Zulkey, of Baker & McKenzie, of Chicago, for amici curia Atchison, Topeka & Santa Fe Ry. Co. et al.
MR. JUSTICE MORAN delivered the opinion of the court:
This action resulted from the death of Paul Churchill, who was a passenger in an automobile driven by James R. Cravens when the vehicle stalled on the tracks of the Norfolk & Western Railway, and was struck by one of its trains. Plaintiff, Lois A. Churchill, individually and as administrator of her husband‘s estate, filed an eight-count amended complaint against Norfolk & Western Railway, James R. Cravens, and Chrysler Motors Corporation. Only Lois A. Churchill (plaintiff) and Norfolk & Western Railway (defendant) are involved in this appeal.
Counts I, II, V, VII and VIII went to the jury. Counts I and II, alleging negligence and wilful and wanton misconduct, respectively, were brought by plaintiff as administrator against defendant under the Wrongful Death Act (
The jury returned a verdict in favor of plaintiff-administrator for $45,000 under count I for negligence, and, by separate verdict, for $45,000 under count II for
A majority of the appellate court affirmed in part and reversed in part. (46 Ill. App. 3d 781.) It remanded the cause to the circuit court of Sangamon County with directions to enter a single judgment for $45,000 pecuniary damages on behalf of plaintiff as administrator, a judgment for plaintiff individually in the amount of $1,600 for funeral expenses, and a judgment for plaintiff individually for $600,000 in punitive damages.
On its own motion, the appellate court, pursuant to
Our recitation of the facts is limited to those which frame the issues before us.
At 7:20 p.m. on March 17, 1970, Paul Churchill was a passenger in the front seat of owner-operator Cravens’ 1969 Dodge Charger. As Cravens’ auto approached the Dawson, Illinois, railroad crossing (which was equipped with bells and flasher signals), Cravens looked to the east, but his view was obstructed by a line of defendant‘s boxcars stored on sidetracks at a distance beginning 414 feet east of the crossing. As Cravens drove onto the tracks, he noticed a train approaching from the east at 60 miles per hour. His car stalled and, about the same moment, the
According to the testimony of a State trooper who investigated the accident, Cravens reported that the train was 600 feet to the east of the crossing when he first saw it. However, in response to defendant‘s interrogatory, Cravens stated that the train was approximately at the next crossing to the east (one-half mile away) when his car stalled on the tracks. This interrogatory was not read to the jury. Both the train‘s engineer and its fireman concurred that the car was 500 or 600 feet away when they first saw it on the tracks. The brakeman on the train testified that the car could be seen on the tracks for one-quarter to one-half mile prior to impact, but that it was not until the train was within 500 or 600 feet of the auto that the train crew realized the car was stalled.
Another auto, traveling in the opposite direction, crossed the tracks immediately prior to Cravens’ auto. That driver testified that he heard no train whistle or bell to signal the approach of a train, and that the flasher lights were not operating when Cravens’ car approached the crossing. The train engineer testified that the whistle was sounded when the train was 900 feet from the crossing and that the engine bell was ringing.
It was shown that the defendant had been repeatedly warned of the dangerous visual obstruction created by the boxcars being stored near the crossing. On numerous occasions and once by certified letter on October 7, 1966, a neighboring school district communicated to the defend-
Of the myriad issues presented, we first review that which prompted the appellate court to certify these companion cases: In an action arising from the accident-related death of a person injured, are both compensatory and punitive damages recoverable under section 73 of the Public Utilities Act?
Section 73 of the Public Utilities Act provides:
“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.” (Emphasis added.) (
Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77 .)
Defendant was found to have violated Rule 205 of General Order 138 of the ICC. The rule requires a railroad to keep its right-of-way reasonably clear of unnecessary obstructions for a minimum of 500 feet from every grade crossing at which an obstruction would materially obscure approaching trains from the view of travelers on the highway.
Defendant initially seeks to dispose of the question by asserting that the statutory remedy in section 73 does not apply to personal injury actions. It contends that the
The Public Utilities Act, designed in part to promote public safety by public utilities, was originally enacted in 1913. (1913 Ill. Laws 459.) By 1925, this court had resolved that the Act directly sought to secure the public‘s protection at the intersections of streets and railroads. (Village of Atwood v. Cincinnati, Indianapolis & Western R.R. Co. (1925), 316 Ill. 425.) In 1937, the ICC, pursuant to its authority under the Act, adopted General Order 138. That general order specifically imposed rules, regulations and requirements “relating to construction, maintenance, marking and protection of crossings of Highways and Railroads.” (See American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 406, 429, 434.) The Seventh Circuit Court of Appeals has twice held that section 73 of the Public Utilities Act clearly provides a remedy for personal injuries which result from a violation of ICC rules concerning public safety at railroad crossings. (Lippincott v. Wabash R.R. Co. (7th Cir. 1961), 295 F.2d 577; Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) We are impelled by the twin forces of statutory clarity and judicial precedent to conclude that personal injury actions, arising out of the violation of the ICC‘s rules on public safety at railroad crossings, are cognizable under section 73 of the Public Utilities Act.
Defendant contends that even if section 73 of the Public Utilities Act recognizes a cause of action against a public utility for violations which result in personal injury, no cause of action exists when such violations result in death. We believe defendant has reached this anomalous conclusion by confusing plaintiff‘s causes of action under
Counts VII and VIII were brought by plaintiff in her own behalf, not as a representative of the decedent as would be true in a wrongful death action. Plaintiff, on the basis of the financial injury she personally incurred, sought both compensatory and punitive damages directly under the Public Utilities Act. In order to avoid confusion with the wrongful death counts, counts VII and VIII should be regarded as actions brought against the defendant, whose wrongful and wilful violation of the Public Utilities Act, resulting in another‘s death, caused injury to plaintiff.
Twenty years ago there would have been no such distinction inasmuch as the Wrongful Death Act was deemed to be the exclusive remedy against a defendant whose wrongful act resulted in another‘s death. (Holton v. Daly (1882), 106 Ill. 131, 140.) In 1960, that proposition was rejected because it was based on the anachronistic and misunderstood principle that there is no right of recovery after the death of an injured person. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 306; see Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 426.) In Saunders, this court clarified the distinction.
“[T]here is presently no legally cogent reason for denying a spouse the right to recover for medical and funeral expenses incurred on behalf of a mate who was wrongfully injured or killed. The rule denying such recovery originated as a corollary of the archaic common-law rule that there could be no recovery for the death of a human being, which is no longer the law. Moreover, under the present status of the law, a surviving spouse is personally liable under family expense statutes for the medical and burial expenses incurred on behalf of a husband or wife. Viewing the situation
realistically, this liability of the surviving spouse for such expenses constitutes very real damages. Since that liability results from defendant‘s tortious conduct, it is only legally sound, and in accordance with basic negligence principles, that the burden of such damages should fall, not on the innocent victim, but upon the tortfeasor.” (Emphasis added.) Saunders v. Schultz (1960), 20 Ill. 2d 301, 309-10.
The Saunders decision stands for the general proposition that actions independent of the Wrongful Death Act may be brought against a defendant whose wrongful act resulted in another‘s death. Saunders itself permitted a spouse to recover, under the common law, for the medical and funeral expenses of her deceased husband—expenses for which she was liable under the family expense act (
It is clear that, under the Public Utilities Act, plaintiff herein is a person “affected” by defendant‘s wrongful act in that she individually suffered “loss, damages or injury” in an amount which the jury determined to be $1,600. There is no indication that persons “affected” by the wrongful act are only those who are physically injured as the proximate result of the wrongful act. Generally, a person “affected” by a wrongful act is one who shows a direct personal interest in the matter as opposed to one whose interest is merely in common with that of the general public. The issue may be expressed as one of standing. Plaintiff has standing to bring her action against the defendant under
The Act also provides that “if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment.” (
During trial, defendant attempted to call co-defendant Cravens as an adverse witness under
During the conference on jury instructions, plaintiff offered to withdraw her objection and to permit defendant to reopen its case for the purpose of calling Cravens under section 60. Defendant declined to do so, contending that the prejudice could not, at that point, be overcome by allowing it to reopen its case and present Cravens’ testimony. The trial court noted in its memorandum opinion that plaintiff‘s offer to withdraw the objection preceded closing arguments, and expressly found that its earlier ruling on the objection had not so prejudiced the defendant that it could not have been cured at that point. Certainly, it was well within the court‘s discretion to allow defendant‘s case to be reopened prior to closing argument. We agree with the trial and appellate courts that, under the circumstances, the assignment of error became moot when plaintiff agreed to withdraw all objections to Cravens’ competency and the trial court provided defendant the opportunity for such evidence to be considered by the jury.
Defendant urges that it was error to admit evidence that on prior occasions railroad cars had been left within 500 feet of the crossing and to admit evidence of previous accidents which had occurred at the same crossing under somewhat similar conditions. Its position is that the only relevant issue was whether, at the time of the instant accident, there was a violation of the ICC‘s Rule 205 which prohibited obstructions within 500 feet. We disagree. We acknowledge that the evidence of prior violations of Rule 205 and of accidents resulting therefrom
Defendant also complains of the admission of testimony elicited to show that the flasher lights at the crossing failed to operate properly on two occasions after the date of the accident. It is clear that faulty operation on a later date does not tend to prove that the flashers were malfunctioning on the date in question. However, the testimony was not introduced for such purpose. It was introduced to rebut the expert testimony of a defense witness who opined that it was impossible for the flasher system to malfunction. For that limited purpose, the testimony was properly admitted.
Defendant maintains that, as a matter of law, Paul Churchill failed to exercise due care in preventing his fatal injury, and defendant‘s violation of Rule 205 was not a proximate cause of that fatal injury. No special interrogatories were submitted to the jury on these issues; therefore the jury‘s determination resides in its verdicts against defendant.
“What conduct on the passenger‘s part is necessary to comply with this duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.” Hatcher v. New York Central R.R. Co. (1959), 17 Ill. 2d 587, 593, quoting Rhoden v. Peoria Creamery Co. (1934), 278 Ill. App. 452, 464-65.
Here, the record reflects that Churchill, who was familiar with the crossing, was 62 years old and hard of hearing. There was evidence from a disinterested witness that the flasher lights and bells at the crossing were not in operation when the car in which Churchill was riding entered the crossing. Failure of the lights and bells to function could well constitute an invitation to cross. (Langston v. Chicago & North Western Ry. Co. (1947), 398 Ill. 248, 253-54; Humbert v. Lowden (1944), 385 Ill. 437, 443.) Certainly, a passenger who is aware that a crossing is equipped with a flasher signal is not negligent as a matter of law if he fails to look up and down the track
Once the car stalled on the tracks, did Churchill, as a matter of law, fail to exercise reasonable care for his own safety? The evidence reveals that Churchill had only a matter of seconds to extricate himself from the seat belt and to escape harm. The law recognizes that, in a moment of unexpected emergency and imminent danger, a person is not held to the same degree of prudence that is expected of one with time for reflection and deliberation. (Chicago & Alton R.R. Co. v. Corson (1902), 198 Ill. 98, 102; Darby v. Checker Co. (1972), 6 Ill. App. 3d 188, 194; 1 J. Dooley, Modern Tort Law sec. 4.17, at 97 (1977).) We cannot conclude that Churchill‘s conduct constituted contributory negligence as a matter of law. Therefore, the jury‘s determination that Churchill was not contributorially negligent must remain undisturbed.
On the issue of proximate cause, defendant asserts that the stalling of the car on the tracks was the sole proximate cause of the fatality. Defendant does not develop this assertion and actually argues that Churchill‘s failure to extricate himself from a perilous situation was also a proximate cause of his fatal injury. Defendant‘s internal contradiction prompts one conclusion: reasonable men could well disagree as to the proximate cause or causes of his death. Therefore, we do not encroach upon the jury‘s determination that the obstructing boxcars were a proximate cause of the accident.
Defendant also contends that by rejecting nine of its tendered instructions the trial court effectively prevented the jury from considering its theory of the case. Each was a non-IPI instruction, largely repetitive of given IPI instructions which fairly and accurately stated the applicable law. We conclude that the jury was thoroughly and properly instructed on all the issues in dispute.
Defendant, citing Eggimann v. Wise (1963), 41 Ill. App. 2d 471, next argues that the verdicts finding it guilty of negligence under counts I and VII are, in effect, verdicts finding it not guilty of wilful and wanton conduct under counts II and VIII; that since the jury returned verdicts against the defendant under all four counts, the verdicts as to counts II and VIII must be set aside as inconsistent with the verdicts of counts I and VII.
In Eggimann, as here, the plaintiff pleaded one count for ordinary negligence and another for wilful and wanton misconduct. The jury, in a single verdict, found against the defendant under both counts. The verdict was reversed because the jury had been instructed as to the burden of proof only under the negligence count and was erroneously instructed as to the form of verdict. The jury was thereby prevented from separately finding for the plaintiff in only one of the two counts presented. In the instant case the jury was given separate instructions and separate verdict forms, and it returned separate verdicts on each count.
Defendant quotes Eggimann, saying:
“[N]egligence, and wilfulness are unmixable; a verdict finding the defendant guilty of negligence is, in effect, a verdict finding the defendant not guilty of wilfulness and wantonness; negligence is not wilfulness or wantonness, and wilfulness or wantonness is not negligence: (citations).” Eggimann v. Wise (1963), 41 Ill. App. 2d 471, 483-84.
We limitedly agree with the rationale in Eggimann to the extent that negligence and wilful misconduct are not synonomous. They are not, however, in every instance, mutually exclusive.
When a jury, faced with assessing ordinary negligence or wilful and wanton misconduct, returns a general verdict, it must be presumed that the defendant has been found guilty of wilful and wanton misconduct. (Trumbo v.
Chicago, Burlington & Quincy R.R. Co. (1945), 389 Ill. 2d 213, 221; Greene v. Noonan (1939), 372 Ill. 286, 291.) We cannot reach a lesser conclusion simply because, here, the jury brought in a separate verdict on each count. We will not ignore the jury‘s intent in returning, on count II, an express finding that the defendant was guilty of wilful and wanton misconduct inasmuch as the pleadings, proof and instruction were proper and commensurate with such verdict. Counts I and II arose from a wrongful death action under which there can be but one recovery. For these reasons, the $45,000 verdict for pecuniary damages under count II must stand.Finally, defendant claims that the entire verdict under count VIII must be set aside and cannot be cured by remittitur. It first argues that the $45,000 compensatory award under count VIII was the sympathetic response of a jury prejudiced against the defendant by evidence of earlier accidents and the later malfunction of the crossing signals. As we have already indicated, such evidence was properly admitted. The manner in which the case was tried and submitted did not tend to prejudice the jury.
Defendant further argues that the jury‘s verdicts on counts VII and VIII, regarding the award of compensatory damages, are inconsistent and bear no reasonable relationship to the damages suffered by the plaintiff; that the compensatory damages awarded under count VIII are almost 30 times the damages proved by plaintiff‘s claim, under the family expense act, under count VII; and that, as a result, the entire verdict under count VIII must be set aside.
Both counts VII and VIII, brought under the
Verdicts are to be liberally construed and may be amended to conform to the pleadings and evidence contained in the record whenever the intention of the jury is clear. (Manders v. Pulice (1970), 44 Ill. 2d 511, 517; Western Springs Park District v. Lawrence (1931), 343 Ill. 302, 310-11.) Amending a verdict is not the same as entering an order of remittitur. The jury clearly intended to award plaintiff punitive damages, and the record substantiates such finding. Therefore, that portion of the verdict will stand.
For the reasons stated, the judgment of the appellate court is affirmed. The cause is remanded to the circuit court of Sangamon County with directions to enter a judgment for the plaintiff, as administrator, for pecuniary damages in the amount of $45,000; to enter a judgment for plaintiff, individually, for compensatory damages in the amount of $1,600; and to enter a judgment for plaintiff, individually, for punitive damages in the sum of $600,000.
Affirmed and remanded, with directions.
MR. JUSTICE RYAN, dissenting:
In this case, and in National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, we have
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.
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.
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
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
Although the opinion speaks of the “very real
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 recovery in our case is sought not under the common law but under the provisions of section 73 of the
Although I have found no cases directly in point, there are several cases which hold that statutes similar to section 73 of our
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
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
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
The objective of punishing the railroad for such violations can be accomplished by the use of sections 76 and 77 of the Act (
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
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, I 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
MR. JUSTICE UNDERWOOD joins in this dissent.