Froud v. Celotex Corp.
| Decision Date | 25 June 1982 |
| Docket Number | Nos. 81-0052,81-0053,81,s. 81-0052 |
| Citation | 107 Ill.App.3d 654,437 N.E.2d 910,63 Ill.Dec. 261 |
| Parties | , 63 Ill.Dec. 261 Beatrice FROUD, Individually and as Special Administrator of the Estate of James Froud, Plaintiff-Appellant, v. The CELOTEX CORPORATION, et al., Defendants-Appellees. Rita WILLIAMSON, Individually and as Administrator of the Estate of Wyatt Williamson, Plaintiff-Appellant, v. The CELOTEX CORPORATION, et al., Defendants-Appellees. Shirley FRIDAY, Individually and as Special Administrator of the Estate of John Friday, Plaintiff-Appellant, v. The CELOTEX CORPORATION, et al., Defendants-Appellees. 0054. |
| Court | United States Appellate Court of Illinois |
John M. Burke, Burke and Burke, Ltd., Chicago, for Beatrice Froud, Rita Williamson and Shirley Friday.
Phelan, Pope & John, Chicago, for Raybestos-Manhattan, Inc.; Peter C. John, Barbara K. Halpern, Chicago, of counsel.
Donald J. O'Brien, Jr., Michael W. Rathsack, Chicago, for Standard Asbestos Mfg. and Insulating Co.
Sweeney & Riman, Chicago, for Keene Corp., individually and as successor to Baldwin-Ehret-Hill, Inc.; Harry G. Sachrison, Chicago, of counsel.
The Law Offices Of John B. Grogan, Chicago, for Grant Wilson, Inc.; Thomas J. Kane, John B. Grogan, Chicago, of counsel.
French & Rogers, Chicago, for Armstrong Cork Co.; Richard G. French, Thomas F. Lucas, Chicago, of counsel.
Haskell & Perrin, Chicago, for A & M Insulation Co.; Willis R. Tribler, Philip A. Jackman, Chicago, of counsel.
Tenney & Bentley, Chicago, for AARCO Products Corp.; Michael J. Smith, Karen S. Quandt, Chicago, of counsel.
Hubbard, Hubbard, O'Brien & Hall, Chicago, for Mauritzon, Inc.; Rory D. Cassidy, Chicago, of counsel.
Ross, Hardies, O'Keefe Babcock & Parsons, Chicago, for Union Carbide Corp.; Edward F. Ryan, Keith A. Klopfenstein, Chicago, of counsel.
Pretzel, Stouffer, Nolan & Rooney, Chicago, for Ruberoid Inc., a division of GAF Corp.; John A. Goudge, Joseph B. Lederleitner, Robert Marc Chemers, Chicago, of counsel.
Kiesler & Berman, Chicago, for Ryder Cement.
Kralovec, Marquard, Doyle & Gibbons, Chtd., Chicago, for The Flintkote Co.; Henry J. Marquard, Joseph J. McDonough, Chicago, of counsel.
Johnson, Cusack & Bell, Ltd., Chicago, for Johns-Manville Sales Corp., individually and as successor in interest to Johns-Manville Products Corp.; William V. Johnson, Thomas H. Fegan, Robert Bell, Jr., Chicago, of counsel.
Sloan & Connelly, Chicago, for The Celotex Corp., individually and as successor in interest to Panacon Corp. and Philip Carey Mfg. Company; Robert E. Davy, Mark A. Moynihan, Chicago, of counsel.
Baker & McKenzie, Chicago, for Pittsburgh Corning Corp., Combustion Engineering, Inc., and Fibreboard Corp.; Francis D. Morrissey, Harry J. O'Kane, Daniel J. Cheely, Chicago, of counsel.
McKenna, Storer, Rowe, White & Farrug, Chicago, for UNARCO Industries, Inc.; John F. White, Robert S. Soderstrom, James P. DeNardo, Chicago, of counsel.
The Law Offices of Thomas J. Keevers, Chicago, for Eagle-Picher Industries, Inc.; Debra S. Puchowitz, Chicago, of counsel.
Epton, Mullin, Segal & Druth, Chicago, for H. K. Porter Co.; Edward J. McCambridge, Chicago, of counsel.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Owens-Corning Fibreglas Corp.; Thomas J. Weithers, D. Kendall Griffith, Frederick S. Mueller, Chicago, of counsel.
Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for Forty-Eight Insulation.
Schiff, Hardin & Waite, Chicago, for Owens-Illinois, Inc.; Roger Pascal, Robert H. Riley, Chicago, of counsel.
Judge, Drew, Cipolla & Kurnik, Park Ridge, for Nicolet Industries, Inc., successor in interest to Keasvey-Mathison, Inc.; James S. Stephenson, Chicago, of counsel.
These three consolidated appeals present the question of whether punitive damages can be recovered under the Survival Act (Ill.Rev.Stat.1979, ch. 110 1/2, par. 27-6) in a common law cause of action.
James Froud and John Friday were asbestos workers who allegedly contracted peritoneal mesothelioma from prolonged exposure to asbestos products which were manufactured and sold by the defendants. Wyatt Williamson was an asbestos worker who allegedly contracted bronchogenic carcinoma from prolonged exposure to the same asbestos products. After Froud and Friday filed actions against the defendants, they died, and administrators were appointed to prosecute the actions on behalf of their estates. Williamson died before filing an action, and his administrator brought an action on behalf of his estate.
In each of these actions, count one accuses the defendants of negligence, count two is based on strict liability in tort, and count three seeks recovery of punitive damages. The defendants moved to dismiss count three of each action on the grounds that these common law actions for punitive damages abated at the death of the injured parties. These motions were granted, and the trial court found that there was no just reason for delaying appeal of its dismissal orders. (Sup.Ct.R. 304(a), Ill.Rev.Stat.1979, ch. 110A, par. 304(a).) In deference to the trial court, we note that the court stated that it is illogical and unjust to permit defendants to escape liability for punitive damages merely because they are lucky enough to injure people who die before trial. However, the trial court reluctantly concluded that it was obligated to dismiss the actions for punitive damages.
We reverse.
The common law rule is that actions for "personal torts" abate at the death of the injured person. (Prosser, Torts § 126, at 898 (4th ed. 1971).) This common law rule is the source of the old adage that it was cheaper to kill people rather than to merely injure them. To counter the injustice caused by this rule, the Survival Act keeps various causes of action from abating at the death of the injured party, including "actions to recover damages for an injury to the person (except slander and libel)" (Ill.Rev.Stat.1979, ch. 110 1/2, par. 27-6). But, despite the fact that the statute does not distinguish between punitive and compensatory damages for injury to the person, Illinois case law has, for more than 100 years, interpreted the Act as providing that actions for punitive damages abate at the death of the injured person. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 33, 330 N.E.2d 509.) Thus, as far as liability for punitive damages is concerned, it continued to be cheaper to kill people rather than to merely injure them. 61 Ill.2d at 38, 330 N.E.2d 509, (J. Goldenhersh dissenting).
Relying on National Bank of Bloomington v. Norfolk and Western Ry. Co. (1978), 73 Ill.2d 160, 23 Ill.Dec. 48, 383 N.E.2d 919), the administrators in the present cases argue that the supreme court no longer construes the Survival Act as providing for the abatement of actions for punitive damages. In National Bank, the supreme court held that a statutory cause of action for punitive damages under section 73 of the Public Utilities Act (Ill.Rev.Stat.1969, ch. 111 2/3, par. 77) did not abate at the death of the injured person, even though section 73 does not contain any reference to the question of survivability. * The court explained that it reached this result because the goal of promoting public safety through the use of punitive damages would be perverted if a wrongdoer could escape liability for outrageous misconduct merely because the injured person died before trial. 73 Ill.2d at 174, 23 Ill.Dec. 48, 383 N.E.2d 919. As interpreted by the supreme court in National Bank, "The Survival Act itself neither authorizes nor prohibits punitive damages." (73 Ill.2d at 174, 23 Ill.Dec. 48, 383 N.E.2d 919.) The court further explained that, "Punitive damages for injuries prior to death should be unaffected by the subsequent death of the injured person, for punitive recovery addresses only the nature and gravity of a defendant's wrongful and wilful act." 73 Ill.2d at 174, 23 Ill.Dec. 48, 383 N.E.2d 919.
The precise question presented by the present appeals is whether the holding of National Bank is limited to statutory actions, or whether the court really meant it when it declared that, "The Survival Act itself neither authorizes nor prohibits punitive damages." 73 Ill.2d at 174, 23 Ill.Dec. 48, 383 N.E.2d 919.
Justice Ryan, in dissenting from National Bank, pointed out that (1) there is nothing in section 73 of the Public Utilities Act which indicates that the legislature intended for this statutory cause of action for punitive damages to survive the death of the injured person; and (2) there is nothing in the Survival Act to indicate that the legislature intended to distinguish between statutory and common law punitive damages. (73 Ill.2d at 178, 23 Ill.Dec. 48, 383 N.E.2d 919.) Moreover, awarding punitive damages in common law actions is also intended to promote public safety by punishing outrageous misconduct, and this goal would be perverted in common law cases, as well as statutory actions, if wrongdoers could escape liability whenever an injured person dies before trial. Thus, Justice Ryan concluded that, "[I]f 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." 73 Ill.2d at 178, 23 Ill.Dec. 48, 383 N.E.2d 919.
We agree that there is no apparent basis for distinguishing between statutory provisions for punitive damages, such as section 73 of the Public Utilities Act, and actions for punitive damages based on the common law. And we are persuaded that the holding in National Bank is based on an interpretation of the Survival Act as a neutral vehicle which "neither authorizes nor prohibits punitive damages" (73 Ill.2d at 174, 23 Ill.Dec. 48, 383 N.E.2d 919) in both statutory and common law actions. We therefore conclude that, under the binding precedent of National Bank, common law actions for punitive damages survive the death of injured...
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