Those decisions which allow an action for fatal injuries as well as for wrongful death are to be preferred to this court's holding in Holton v. Daly, 106 Ill. 131 (1882), that the Wrongful Death Act was the only remedy available when injury resulted in death.
The estate or the spouse, either or both as the circumstances indicate, are entitled to recover for pecuniary losses suffered by either or both which are not recoverable under the Wrongful Death act.
Plaintiff's husband was injured through defendants' negligence in a fire on defendants' premises. After he died nine days later, plaintiff filed a complaint claiming damages for wrongful death under the Illinois Wrongful Death Act (count I) and sought damages for conscious pain and suffering, loss of wages and property damage (count II). The circuit court allowed defendants' motion to strike the second count holding it failed to state a cause of action. The appellate court affirmed the dismissal of count II of the complaint as to its allegations of pain and suffering and reversed the judgment as to its allegations of loss of wages and property damage. Plaintiff appealed. Judgment was affirmed insofar as it held an action could be maintained by plaintiff for loss of property and loss of wages during the interval between injury and death; judgment was reversed insofar as it held plaintiff could not maintain an action for her decedent's pain and suffering.
Could a cause of action could be maintained for decedent's pain and suffering after his death allowing the estate to collect damages he no longer was able to pursue himself?
The court reversed in part, holding a cause of action could be maintained for decedent's pain and suffering because that action would survive decedent's death allowing the estate to collect damages he no longer was able to pursue himself. To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer's liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter.