{ "id": 5429097, "name": "THE HERGET NATIONAL BANK OF PEKIN, Adm'r, Appellee, v. JOSEPH BERARDI, Ex'r, Appellant", "name_abbreviation": "Herget National Bank v. Berardi", "decision_date": "1976-10-01", "docket_number": "No. 47972", "first_page": "467", "last_page": "473", "citations": [ { "type": "official", "cite": "64 Ill. 2d 467" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "39 A.L.R.2d 477", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1955, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 137", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5342475 ], "year": 1955, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0137-01" ] }, { "cite": "341 Ill. 548", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5250986 ], "year": 1955, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 0, "case_paths": [ "/ill/341/0548-01" ] }, { "cite": "34 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878557 ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0057-01" ] }, { "cite": "28 A.L.R.2d 656", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "28 A.L.R.2d 662", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1953, "opinion_index": 0 }, { "cite": "41 Ill. App. 2d 23", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2453686 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0023-01" ] }, { "cite": "7 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2713409 ], "weight": 2, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0106-01" ] }, { "cite": "19 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2746127 ], "weight": 2, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0190-01" ] }, { "cite": "413 Ill. 503", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313509 ], "weight": 2, "pin_cites": [ { "page": "512-13" } ], "opinion_index": 0, "case_paths": [ "/ill/413/0503-01" ] }, { "cite": "4 Vill. L. Rev. 303", "category": "journals:journal", "reporter": "Vill. L. Rev.", "year": 1959, "opinion_index": 0 }, { "cite": "410 Ill. 130", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311001 ], "weight": 4, "year": 1959, "pin_cites": [ { "page": "133" }, { "page": "134" }, { "page": "133-34" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0130-01" ] }, { "cite": "31 Ill. App. 3d 608", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2711865 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0608-01" ] } ], "analysis": { "cardinality": 542, "char_count": 9271, "ocr_confidence": 0.888, "pagerank": { "raw": 1.2127144899188046e-07, "percentile": 0.5963839976770846 }, "sha256": "6aa15f9e13dec7ea9f9c2146a08f73fc3c4d2884eea65d8056c842afcf7b4ff4", "simhash": "1:a03276d39424acdd", "word_count": 1593 }, "last_updated": "2023-07-14T20:40:05.416436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE HERGET NATIONAL BANK OF PEKIN, Adm\u2019r, Appellee, v. JOSEPH BERARDI, Ex\u2019r, Appellant." ], "opinions": [ { "text": "MR. CHIEF JUSTICE WARD\ndelivered the opinion of the court:\nOn February 2, 1972, an airplane piloted by Darolde J. Petri crashed in Warren County in Tennessee, killing him and his wife, Betty L. Petri, who was a passenger. The plaintiff, the Herget National Bank, as the administrator of the estate of Betty L. Petri, brought an action under the Wrongful Death Act (Ill. Rev. Stat. 1973, ch. 70, pars. 1 and 2) in the circuit court of Tazewell County for the benefit of its decedent\u2019s surviving minor children, Mark R. Petri, Julie J. Petri and Todd M. Petri, naming Joseph Berardi, the executor of the estate of Darolde J. Petri, as the defendant. The complaint was in two counts, alleging both negligence and willful and wanton conduct on the part of the defendant\u2019s decedent, Darolde J. Petri, in the operation of the plane.\nThe circuit court allowed the defendant\u2019s motion to dismiss the complaint with prejudice under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 48), but the appellate court reversed and remanded the cause, holding that the administrator of the wife\u2019s estate was not precluded from maintaining the wrongful death action against her late husband\u2019s executor (31 Ill. App. 3d 608). We allowed defendant\u2019s petition for leave to appeal.\nThe defendant\u2019s argument that the complaint was properly dismissed is based on two statutes: Section 1 of \u201cAn Act to revise the law in relation to husband and wife\u201d (hereafter, the Married Woman\u2019s Act) (Ill. Rev. Stat. \u00cd973, ch. 68, par. 1), and the Wrongful Death Act (Ill. Rev. Stat. 1973, ch. 70, pars. 1 and 2). The relevant portion of the Married Woman\u2019s Act states: \u201c[P] rovided, that neither husband nor wife may sue the other for a tort to the person committed during coverture.\u201d (Ill. Rev. Stat. 1973, ch. 68, par. 1.) The Wrongful Death Act provides:\n\u201cWhenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every case the person who or company or corporation which would have been liable'if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.\u201d Ill. Rev. Stat. 1973, ch. 70, par. 1.\nThe defendant contends that since the Married Woman\u2019s Act prohibits one spouse from suing the other for a tort committed during coverture, the present action is barred, because the language of the Wrongful Death Act requires that in order to bring the statutory action the party would have had to have been entitled to have maintained an action had death not ensued. The parties agree that Mrs. Petri could not have maintained an action against her husband or his estate had she survived the crash.\nAt common law a wife could not maintain an action against her husband (nor a husband against his wife), because, it was reasoned, of the union created by the marital relationship. \u201cHusband and wife were one at common law, it has been said, and the husband was that one. The wife could own no separate property, nor could she maintain an action independently. Whatever rights of action she might have were enforceable only by her husband. 1 Blackstone\u2019s Commentaries, (Wendell\u2019s Ed.) 441.\u201d Welch v. Davis, 410 Ill. 130, 133; see also McCurdy, Personal Injury Torts Between Spouses, 4 Vill. L. Rev. 303 (1959).\nOf course, these disabilities were removed long ago. Beginning in 1844 Married Woman\u2019s Acts were enacted in all American jurisdictions which recognized, inter alia, the right of married women to own property independently and to sue in their own names. (W. Prosser, Law of Torts sec. 122 (4th ed. 1971).) The first Married Woman\u2019s Act in Illinois was enacted in 1861, and a wife can, inter alia, sue in her own name, incur separate debts, enter into contracts and own and convey property in her own name. Ill. Rev. Stat. 1973, ch. 68, par. 1 et seq.\nIn 1952, this court in Brandt v. Keller, 413 Ill. 503, held that a wife could bring an action against her husband for negligence which caused her injury. The court considered that language in the Married Woman\u2019s Act to the effect that \u201ca married woman may, in all cases, sue and be sued\u201d had abrogated the common law disability. (413 Ill. 503, 512-13.) The General Assembly amended the Married Woman\u2019s Act at its next session by adding the provision on which the defendant relies in part: \u201cthat neither husband nor wife may sue the other for a tort to the person committed during coverture.\u201d (Ill. Rev. Stat. 1953, ch. 68, par 1.) This court in Heckendorn v. First National Bank, 19 Ill. 2d 190, 193, considered that this legislative action was in response to the holding in Brandt.\nHowever, it must be observed that prior to Brandt this court held in a case basically like the one before us that the wife\u2019s common law disability had no relevance or application. In 1951, in Welch v. Davis, 410 Ill. 130, it was held that the administrator of a wife\u2019s estate could maintain a wrongful death action for the benefit of the wife\u2019s dependent minor children against the estate of her deceased husband. The husband there had shot and killed his wife and immediately thereafter had killed himself. Although the court recognized that a husband retained an immunity from liability (410 Ill. 130, 134), it judged it would not bar the action. The court observed, as in the case here, that neither the husband nor wife was a party to the suit but instead, the wife\u2019s administrator was asserting the independent rights of the wife\u2019s surviving child against the husband\u2019s executor. 410 Ill. 130, 133-34.\nIn 1955 in Bradley v. Fox, 7 Ill. 2d 106, this court followed its holding in Welch v. Davis, saying it had been determined there that the administrator of a wife\u2019s estate may maintain an action against the husband\u2019s estate for loss suffered by a child through the death of the wife by the husband\u2019s wrongful conduct. No reference was made to the statute enacted after Brandt barring suits in tort by spouse against spouse, which shows the court\u2019s view that the statute had no application. See also Calvert v. Morgan, 41 Ill. App. 2d 23, and the annotation in 28 A.L.R.2d 662 (1953), following Welch v. Davis, which is reported at 28 A.L.R.2d 656. The annotation, at pages 666-67, notes the \u201crecent and well-reasoned trend *** to allow recovery *** for the benefit of children for damages sustained by reason of the unlawful killing of their mother.\u201d\nWe consider that the case here is governed by our holdings in Welch and Bradley and that the dismissal by the circuit court was erroneous.\nThe cases of Heckendorn v. First National Bank, 19 Ill. 2d 190, and Wartell v. Formosa, 34 Ill. 2d 57, which the defendant cites, are simply not in point. Both cases presented the question as to whether a wife had the right to bring an action against her late husband\u2019s estate for a tort committed during coverture. This court held in each case that the action was barred by the amendment enacted after the decision in Brandt. These cases are obviously distinguishable from Welch and Bradley. They involved suits directly by the wife to recover for her own injuries sustained through a tortious act of the husband committed during coverture.\nWe are not persuaded by the defendant\u2019s last contention, which is that as the holdings in Welch and Bradley involved murders the holdings were intended to be limited to instances of \u201cfamily murders.\u201d These decisions were influenced, he says, by the public policy disfavoring one who murders a member of his own family, citing to section 15a of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 15a) (heir who murders an ancestor cannot inherit from that ancestor) and section 49a of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 49a) (legacy or devise to murderer of testator void).\nWe consider that the murders in Welch and Bradley were not significant circumstances. The holdings basically were that actions brought for the benefit of surviving children of the deceased mother were not within the contemplation of the rule that a wife cannot sue her husband. Too, the public policy doctrine to which the defendant refers is that no man should be permitted to profit from his own crime or wrongdoing. (Bradley v. Fox, 7 Ill. 2d 106, 116; Illinois Bankers Life Association v. Collins, 341 Ill. 548, 551-52; In re Estate of Moses, 13 Ill. App. 3d 137, 146; Annot., 39 A.L.R.2d 477 (1955).) That is not involved here or in Welch or Bradley.\nF or the reasons given, the judgment of the appellate court is affirmed.\nJudgment affirmed.", "type": "majority", "author": "MR. CHIEF JUSTICE WARD" } ], "attorneys": [ "McConnell, Kennedy, McConnell & Morris, of Peoria, and Lord, Bissell & Brook, of Chicago (W. Thomas Johnston, Fred C. Begy III, and Hugh C. Griffin, of counsel), for appellant.", "Heyl, Royster, Voelker & Allen, of Peoria, and Brings, Hoffman & Bagley, of Pekin (James E. Bowles, John R. Bagley, and B. Douglas Stephens, Jr., of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 47972.\nTHE HERGET NATIONAL BANK OF PEKIN, Adm\u2019r, Appellee, v. JOSEPH BERARDI, Ex\u2019r, Appellant.\nOpinion filed Oct. 1, 1976.\nRehearing denied Nov. 12, 1976.\nMcConnell, Kennedy, McConnell & Morris, of Peoria, and Lord, Bissell & Brook, of Chicago (W. Thomas Johnston, Fred C. Begy III, and Hugh C. Griffin, of counsel), for appellant.\nHeyl, Royster, Voelker & Allen, of Peoria, and Brings, Hoffman & Bagley, of Pekin (James E. Bowles, John R. Bagley, and B. Douglas Stephens, Jr., of counsel), for appellee." }, "file_name": "0467-01", "first_page_order": 489, "last_page_order": 495 }