author: JUSTICE DOWNING

text:
      In re ESTATE OF HELEN A. WRIGLEY, Deceased.—(JOAN FISCHER WRIGLEY, Plaintiff-Appellee, v. WILLIAM WRIGLEY, Ex’r of the Will of Helen A. Wrigley, et al., Defendants-Appellants.)
    First District (2nd Division)
    Nos. 81-165, 81-290 cons.
    Opinion filed March 9, 1982.

      Barnard & Barnard, of Chicago (Morton John Barnard, of counsel), for appellants.
    Jenner & Block, of Chicago (Michael J. Rovell, Donna Helen Triptow, and Gail Niemann, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

These appeals, consolidated for decision by this court, arise from a will contest filed by plaintiff Joan Fischer Wrigley (Joan). The proceedings involve disposition of certain specific items alleged to be part of the estate of decedent Helen A. Wrigley (decedent). In her petition to contest the will, Joan sought (1) to have a codicil to decedent’s will declared null and void due to decedent’s alleged lack of testamentary capacity (count I); and (2) to have inter vivos gifts, purportedly made by decedent to defendants Dorothy W. Chauncey (Dorothy) and Helen Rich Holmes (Helen) from decedent’s estate, set aside due to decedent’s alleged lack of donative intent (count III). The trial court granted defendants’ motion to sever for trial counts I and III. Thereafter, the claims proceeded separately. Count I gave rise to appeal No. 81-165; count III gave rise to appeal No. 81-290. We will discuss each proceeding separately, after the following brief preliminary recitation of the underlying facts of the two actions.

On March 5, 1975, decedent executed a will. (There is no dispute concerning her testamentary capacity at that time.) In the will, she bequeathed three items of jewelry (a diamond brooch, a gold wristwatch, and a pair of earrings) to her then daughter-in-law, Joan. Some six months after executing this will, on September 18, 1975, decedent suffered a stroke. During her convalescence, in late February 1976, decedent was informed that her son, defendant William Wrigley (William), was having marital problems with his wife, Joan. On April 21, 1976, decedent purportedly executed a codicil to her will which specifically and solely deleted from the will the gifts of jewelry to Joan.

In December 1976, the jewelry was given to Dorothy (the brooch and wristwatch) and Helen (the earrings), purportedly as a gift from decedent. This transfer apparently occurred in Chicago. Both Dorothy and Helen took the jewelry back to their State of residence, Arizona.

On June 27, 1977, decedent died. Her will and the codicil were admitted to probate in Illinois. William, the executor of the estate, filed an inventory of decedent’s Illinois property with the court. The inventory did not list the three pieces of jewelry. On January 13,1978, Joan filed the initial pleading which eventually resulted in these appeals.

No. 81-165

After the trial court granted the defendants’ motion to sever counts I and III for trial, which order was not thereafter objected to by Joan, count I (the codicil contest) proceeded to a jury trial. At the close of Joan’s case in chief, William made a motion for a directed verdict, which was denied. The jury eventually returned a verdict for Joan. William filed a motion for judgment notwithstanding the verdict (n.o.v.) and, alternatively, a motion for new trial based on several alleged errors in evidentiary rulings by the trial court. Both motions were denied.

In appealing the outcome of count I, William contends the trial court erred (1) in failing to grant his motion for judgment n.o.v., and (2) in failing to grant his motion for a new trial. In light of the nature of these contentions, a lengthy recitation of the evidence is necessary.

W. Stirling Maxwell was called by Joan as a section 60 witness (Ill. Rev. Stat. 1979, ch. 110, par. 60), over William’s objection. Maxwell had served as the Wrigley family lawyer since 1950, and since 1975 had devoted nearly all his time to Wrigley matters.

He had drafted decedent’s will of 1975. In February 1976, Maxwell learned that Joan had filed suit against William, seeking to set aside an antenuptial agreement. Maxwell called upon decedent in Lake Geneva, Wisconsin, where she was convalescing from the stroke she had suffered in September 1975. Maxwell mentioned Joan’s suit to decedent and asked whether she desired to eliminate the bequest to Joan from her will. Since decedent was basically unable to speak as a result of the stroke, she had not initiated the conversation. In response to Maxwell’s query, decedent only nodded her head and uttered “a rather low noise.”

On April 21, 1976, Maxwell brought the codicil at issue here to decedent at Lake Geneva. On the signature line, Maxwell printed decedent’s name prior to her making her “mark” on the document.

The following is the signature on the codicil:

“IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal this 21st day of April, 1976.

Joan appeared as a witness on her own behalf. After decedent’s stroke, while Joan was still living with William as his wife, she had discussed decedent’s condition with him on several occasions. William first told Joan about the stroke about one week after it occurred. He related there had been some damage physically, but no one really knew the extent at that time. William asked Joan to keep the matter secret because decedent would not have wanted anyone to know her health status. At a later conversation, William told Joan that it was heartbreaking to watch decedent. She was making a sound similar to his sister’s name (Dee Dee) “in her frustration to communicate and try to make herself understood.” On another occasion, William related that he was exhausted. Decedent had been agitated and screaming. They had tried everything to quiet her. She finally stopped screaming when the television was turned off, although William was not sure if she had stopped for that reason or because she had tired. About one month later, William told Joan he was frustrated at not being able to help decedent. They would ask decedent a question, and the manner in which she nodded her head (yes or no) did not correlate to her later reaction to their compliance with that response. At the hearing, William objected to introduction of Joan’s testimony. On cross-examination, Joan stated she did not see decedent again after Christmas Day 1975. (We note that all of the conversations to which Joan testified occurred several months prior to decedent’s purported execution of the codicil.)

William was called as a section 60 witness. Decedent had been hospitalized as a result of her stroke. He saw no change in her ability to communicate from September 1975 until her death. Decedent never related to him in any manner that she had deleted Joan from her will.

Ann Jugenheimer, an occuptional therapist, testified for Joan. She became employed at the Rehabilitation Institute of Chicago (RIC) in April 1976. Her duties were to evaluate patients and plan treatment programs. While at RIC, she began treating decedent on July 15, 1976. (We note this is nearly three months after the purported execution of the codicil.) Jugenheimer saw decedent on a daily (weekday) basis for about 45 minutes per session. Occasionally, when observing decedent eating, she would see decedent eat with her fingers, although she also used a spoon or fork. She once saw decedent stir coffee with a knife. Jugenheimer believed decedent once mistook a hairbrush for a toothbrush, since decedent was bringing it toward her mouth.

Jugenheimer performed tests on decedent with blocks. She would put them in a pattern and ask decedent to duplicate it. Decedent could do very simple designs but had difficulty with others. Decedent was also unable to consistently match identical pictures of people, although she could do some of them. Decedent never initiated any communication with Jugenheimer. At one point, therapy had to be done in decedent’s room because decedent made too much noise in the clinic, disturbing others by continually repeating “dee dee.”

On cross-examination, Jugenheimer stated she had no opinion as to decedent’s physical or mental condition in April through June 1976. On redirect, Jugenheimer related that based upon her observations, decedent could not understand the nature and extent of her property in July and August 1976. Joan rested her case at the close of Jugenheimer’s testimony.

W. Stirling Maxwell appeared again to testify, this time on behalf of William. Prior to the stroke, decedent had a very keen mind. He first saw decedent after the stroke in October 1975 in Chicago. She recognized Maxwell, squeezing his hand and smiling. Decedent communicated with Maxwell through facial expressions and movement of her left hand. Decedent could no longer sign her name in a normal fashion, but could “make a mark.” In their next meeting a few weeks later, Maxwell asked decedent if she wished to be a trustee of a trust being established by her husband. Decedent nodded “and otherwise indicated that she did.” Maxwell suggested someone be assigned to help with the paperwork. He first named her husband, but decedent shook her head from side to side. When Maxwell mentioned her former son-in-law (William J. Hagenah, Jr.), she indicated “yes.”

Maxwell stated that decedent recognized him on each visit he made in the ensuing months. She was able to feed herself with her left hand and drink without assistance. On one visit in early 1976, Maxwell informed decedent of Joan’s suit against William. Decedent’s expression showed interest. When Maxwell suggested decedent might want to change her will, she nodded and made slight motions of the body. When asked if she wanted to eliminate the bequest to Joan, she responded with a smile. Maxwell asked if she wished to leave anything to Joan. Decedent shook her head from side to side.

Maxwell further testified that on the date the codicil was executed, he was accompanied to Lake Geneva by Claude Brooks. Brooks showed decedent pictures of wind damage to the Wrigleys’ Catalina Island Company property in California. Decedent responded “no, no, no” when Brooks stated that decedent had not previously seen the damage, since she had been there earlier. As to the codicil, Maxwell printed decedent’s name on the codicil, after which she made marks above it. Maxwell asked her if the document was to be a codicil to her will; decedent indicated in the affirmative with motions and by nodding. She indicated her approval to Maxwell and Brooks serving as witnesses. In Maxwell’s opinion, decedent had the ability to understand the nature and extent of her property, to know the natural objects of her bounty, and to understand the codicil.

William appeared on his own behalf. Prior to the stroke, decedent maintained a “somewhat uncomfortable relationship” with Joan, and was in good mental health. As a result of the stroke, decedent lost her ability to speak and suffered paralysis of her right arm and leg. Decedent recognized family members, as shown by facial expressions. She could say “Dee Dee” (her daugher’s name), “yes,” “no,” and occasionally “Bill.” She also communicated by gesturing with her left hand, shaking her head, and using a “very readable facial expression.” William was satisfied that decedent undertood statements he made to her. She was aware of her condition. On one occasion, decedent pointed to a picture of William’s grandfather, who had suffered a stroke and loss of speech, and then pointed to herself. William believed decedent understood what she watched on television, responding appropriately to what was being shown. On several occasions, decedent indicated her ability to recognize her property by signaling that she wanted something done or placed in its proper position. William believed decedent recognized the extent of her property, the natural objects of her bounty, and the effect of signing the codicil.

Dr. Jacob Suker, a physician, knew decedent as a patient and friend. The family called him when decedent first showed symptoms of having suffered a stroke. When decedent’s condition stabilized, she had paralysis of her right arm and leg, had lost vision in the right half of each eye, and was unable to speak. Suker diagnosed expressive aphasia, which he described as loss of the ability to either read, write, or make gestures. Expressive aphasia did not affect her intellect. Suker was able to communicate with decedent after the stroke. She recognized family members.

Suker visited decedent at Lake Geneva on April 21, 1976. She recognized him. Decedent had no change in her mental condition, and remained able to communicate through facial expressions. Suker believed decedent was aware of the natural objects of her bounty, the nature of her property, and the effect of the codicil on that date.

On cross-examination, Suker stated he did not recall decedent’s use of the word “dee dee.” He had noted on a doctor’s report in July 1976, that there was “a possibility of a probable partial receptive aphasia.” (Receptive aphasia is the inability to read or understand.) Another doctor had informed Suker there was evidence of receptive aphasia in September 1975. On redirect, Suker stated he observed no indication in decedent’s physical makeup that she suffered from receptive aphasia.

Dr. Donald Harter, a neurologist, examined decedent at Suker’s request on September 18, 1975. He diagnosed a stroke, finding decedent had prominently expressive aphasia. Harter did not believe decedent’s intellect was affected. She was able to communicate through gestures, facial expression, and changes in intonations of sounds she made. On cross-examination, Harter admitted an October 1975 report he made indicated that decedent suffered from some “receptive apratic elements of aphasia.” On redirect, Harter noted that “apratic elements” prevent an individual from doing certain motor acts, but have nothing to do with one’s ability to comprehend the spoken word.

The testimony of six other witnesses was presented by William as part of his case in chief. Because that evidence is essentially the same for the purposes of this appeal, we shall condense it here. Nancy Olsen served as a domestic to decedent through June 1976, and as a nurse’s aide until decedent’s death. Anita Pody served as a licensed practical nurse to decedent from October 1975 to decedent’s death. Sarah Armstrong served as a licensed practical nurse to decedent from October 1975 to December 1975. Royal West was decedent’s physical therapist from September to November 1975, and from March to July 1976. Veneta Lentz served as a secretary to decedent following the stroke. William J. Hagenah III was decedent’s grandson.

Given the time frames in which they were familiar with decedent, each witness stated that decedent was capable of recognizing the extent of her property, the natural objects of her bounty, and the effect of a codicil. Several stated decedent could understand television shows. Most noted decedent’s capacity to recognize visitors.

On rebuttal, Joan testified that Dr. Suker told her decedent’s condition was “like a short circuit. You can’t tell what’s going in because you don’t get what’s coming out.”

Patricia Gregor, a registered nurse at RIC, was also called as a rebuttal witness. The only substance in her testimony came on cross-examination. Gregor stated decedent could recognize her family, could communicate by gesture, and could understand instructions. Gregor believed decedent could recognize the extent of her property and the natural objects of her bounty in July 1976.

At the close of the evidence, the jury returned a verdict for Joan, finding decedent lacked testamentary capacity on the date she purportedly executed the codicil to her will.

I

Initially, we must address Joan’s argument that appeal No. 81-165 should be dismissed. Joan asserts that the judgment in the codicil contest is not final because there allegedly remain issues other than the mere execution of that judgment. Consequently, she argues, appeal cannot proceed under Supreme Court Rule 301 (73 Ill. 2d R. 301). Additionally, Joan states that the appeal cannot be brought under Supreme Court Rule 304 (73 Ill. 2d R. 304).

We reject Joan’s argument and will reach the merits of appeal No. 81-165. First, we believe that this appeal was properly brought under Rule 301. Count I of Joan’s petition (appeal No. 81-165), the codicil contest, was a statutory action based on section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. llOlz, par. 8 — 1). The evidence focused upon decedent’s testamentary capacity in April 1976. The case was tried before a jury. Count III (appeal No. 81-290), the action to set aside the gifts of jewelry to Dorothy and Helen, is an equitable action. The evidence will focus upon decedent’s donative intent in December 1976. The case will be tried without a jury. Causes of action are considered the same where the same evidence would sustain both. (Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 1094-95, 404 N.E.2d 964.) This is not the situation here. Counts I and III state distinct causes of action. It is apparent, then, that the trial court correctly severed the two counts for trial. Once this severance was ordered, the practical effect was the creation of two distinct cases. The judgment on count I was final as to that case. We find Rule 301 applicable to this circumstance to serve as the basis for an appeal from that judgment. See Salyers v. Board of Governors (1979), 69 Ill. App. 3d 356, 358, 387 N.E.2d 1129, appeal denied (1979), 79 El. 2d 618.

Additionally, were appeal from the judgment on count I not appeal-able under Rule 301, appeal would lie under Rule 304(b). Under that rule, appeal may be taken from a final judgment as to fewer than all claims in a proceeding involving the administration of the estate when that judgment finally determines the right or status of a party. (73 El. 2d R. 304(b) (1).) As noted above, Joan’s petition sought (1) to have the codicil voided, which would restore Joan to the position of a legatee in decedent’s will, and (2) to have the gifts set aside, which would negate the ademption thereof and allow Joan to receive the bequest granted her in the will. While success in the second claim would be legally meaningless were Joan to fail on the first claim, the converse of that proposition is not true. Failure to succeed on the second claim, while rendering success on the first claim of no practical effect, would leave intact the legal effect of successful prosecution of the first claim, establishing Joan in the status of a legatee in the will. In other words, the judgment on count I, regardless of which party succeeds, will finally establish Joan’s status in regard to the administration of decedent’s estate. The count I judgment can be appealed under Rule 304(b)(1). See generally In re Estate of Kime (1981), 95 Ill. App. 3d 262, 419 N.E.2d 1246; In re Estate of Wojtalewicz (1981), 93 Ill. App. 3d 1061, 418 N.E.2d 418.

II

William contends the trial court erred in denying his motion for judgment n.o.v., filed after the jury returned a verdict in Joan’s favor.

A judgment n.o.v. is properly entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the party opposing the motion for such judgment, so overwhelmingly favors the moving party that no contrary verdict based upon the evidence could ever stand. This is the oft-cited Pedrick standard. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) A will contest is subject to the Pedrick standard. (Beyers v. Billingsley (1977), 54 Ill. App. 3d 427, 432, 369 N.E.2d 1320, appeal denied (1978), 71 Ill. 2d 597.) In examining the validity of a trial court’s denial of a motion for judgment n.o.v., this court will not consider conflicts in or the weight of the evidence, or the credibility of witnesses, as those are matters for jury consideration. Murray v. Kleen Leen, Inc. (1976), 41 Ill. App. 3d 436, 440, 354 N.E.2d 415.

The factual issue in count I was whether decedent had the testamentary capacity to execute the codicil to her will on April 21, 1976. Testamentary capacity requires that the testator have sufficient mental ability to know and remember the natural objects of her bounty, to comprehend the kind and character of property held, and to make disposition thereof according to some plan formed in the testator’s mind. (Beyers v. Billingsley (1977), 54 Ill. App. 3d 427, 437-38.) The law presumes every person sane and of sound mind until the contrary is proved. The burden is on the party asserting the lack of testamentary capacity to prove such. (In re Estate of Bonjean (1980), 90 Ill. App. 3d 582, 584, 413 N.E.2d 205.) Evidence regarding a testator’s testamentary capacity must relate to a reasonable period before, during, or after execution of the testamentary document. Such evidence is competent so long as it tends to show the testator’s mental condition at the time of execution. Trojack v. Hafliger (1972), 7 Ill. App. 3d 495, 499, 288 N.E.2d 82, appeal denied (1973), 53 Ill. 2d 605.

We have carefully examined the lengthy record in appeal No. 81-165, and hold that the trial court erred in refusing William’s motion for judgment n.o.v. We believe the evidence is wholly incapable of supporting a verdict for Joan. Briefly, no witness testified that he or she believed decedent was lacking in the elements of testamentary capacity in or near April 1976. While Joan’s witness, Ann Jugenheimer, did reach such a conclusion, her familiarity with decedent’s situation began on July 15, 1976, nearly three full months after the codicil was executed. Her testimony was not competent. (See Trojack v. Hafliger.) The remainder of the lay evidence either points to the conclusion that decedent possessed the requisite mental state (numerous witnesses gave their opinion that the elements of testamentary capacity were present in April 1976 when they were in a position to observe decedent), or is irrelevant to the issue (such as Joan’s highlighting of the circumstances surrounding attorney Maxwell’s possible undue influence upon decedent at the time of the codicil’s execution). Nothing in the testimony of the doctors could support a verdict for Joan. In sum, we are convinced the record in this case could never support a valid judgment that decedent lacked testamentary capacity on April 21, 1976. Consequently, the trial court should have entered judgment n.o.v. for William.

Ill

In light of our determination above, we need not reach the merits of William’s claim that the trial court erred in denying his motion for new trial, which motion was based largely on several alleged errors in ruling on the admissibility of evidence. We do note that William also requested a new trial on the basis that the jury’s verdict was against the manifest weight of the evidence. We have no doubt that William’s position on this last point is valid. Had it been necessary to address this issue, this court would have reversed the judgment and remanded for a new trial due to the paucity of evidence supporting Joan’s case.

Appeal No. 81-165 is reversed and judgment is entered for William that decedent’s codicil was valid.

No.. 81-290

The initial pleading filed by Joan on January 13,1978, was concerned solely with the validity of the codicil. William filed a motion to strike that pleading, asserting Joan’s claim was without merit because, inter alia, decedent had made a gift of the jewelry to Dorothy and Helen, rendering any success Joan might have in the action without practical effect. Dorothy and Helen filed affidavits in support of William’s motion. On April 26, 1978, Joan amended the petition by adding counts III and IV, seeking the return of the jewelry from Dorothy and Helen. The latter filed separate special appearances to these counts, asserting that the trial court had no valid in personam jurisdiction over them nor valid in rem jurisdiction over the jewelry. After hearing oral argument, the court denied the special appearances. Dorothy and Helen appeared generally only as to counts I and II, and requested the trial court certify the jurisdiction question for permissive interlocutory appeal under Supreme Court Rule 308 (73 Ill. 2d R. 308). It did so, and we granted Dorothy’s and Helen’s application for such appeal, case No. 81-290.

IV

Joan argues that Dorothy’s and Helen’s general appearances in the trial of case No. 81-165, count I, constituted a waiver of their objections to jurisdiction in this case. The theory underlying this argument is Joan’s reiteration of her position in case No. 81-165 that the proceedings below consist of only one cause of action.

Section 20(1) of the Civil Practice Act provides a special appearance may be made as to an entire proceeding or as to any cause of action involved therein. (Ill. Rev. Stat. 1979, ch. 110, par. 20(1).) We have previously ruled that there are two distinct causes of action involved here, found in counts I and III. Consequently, Dorothy and Helen could appear generally in the count I proceeding and maintain a special appearance under section 20(1) in the count III proceeding. We reject Joan’s argument to the contrary.

V

Dorothy and Helen contend that the trial court lacked in rem jurisdiction over the jewelry in the count III proceeding. We note that the trial court never relied upon this jurisdictional basis below, nor does Joan assert this as a valid jurisdictional basis on appeal. A court cannot enter a judgment affecting title to property located beyond the territorial limits of the State in the absence of personal jurisdiction over a person who could be ordered to act upon the property. (See Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 959, 378 N.E.2d 522, aff’d (1979), 77 Ill. 2d 323, 396 N.E.2d 504.) A court may not grant relief as to property held by a nonresident who is not within the court’s jurisdiction. (Oakman v. Small (1918), 282 Ill. 360, 364, 118 N.E. 775.) The jewelry sought by Joan is located in Arizona. In the absence of personal jurisdiction over Dorothy and Helen, the trial court could not enter judgment affecting title to the jewelry. We turn now to the question of personal jurisdiction.

VI

Dorothy and Helen assert that the trial court did not have personal jurisdiction over them.

After hearing the parties’ oral arguments on the question of the special appearances, the trial court ruled orally that the court did not lose jurisdiction merely because Dorothy and Helen took the jewelry out of Illinois. The court analogized the situation in the present case to those circumstances in which nonresidents learn of a relative’s death, come to Illinois and “loot” the estate, and then leave Illinois for their home State. The court noted that it would not lose jurisdiction in such cases, and similarly here has not lost jurisdiction simply because Dorothy, Helen, and the jewelry are in Arizona. Based upon this reasoning, the court entered an order which stated in part that the court found “in personam jurisdiction as to the action to set aside gifts * * 0 under Section 17(1) (b) of the Civil Practice Act.”

The long-arm statute provides that a person submits herself to the jurisdiction of the Illinois courts as to any cause of action arising from her conduct which consists, among other things, of the commission of a tortious act within Illinois. (Ill. Rev. Stat. 1979, ch. 110, par. 17(l)(b).) “Tortious acts” are not merely those which fall within the technical definition of a tort. A tortious act includes any act committed within Illinois which involves breach of a duty owed to another and makes the person committing the act liable to the other for damages. (Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 217-18, 231 N.E.2d 1.) In order to find a factual basis for the assertion of personal jurisdiction based upon this segment of the long-arm statute, the court must look to those allegations of fact found in the plaintiff’s complaint. First National Bank of Chicago v. Screen Gems, Inc. (1976), 40 Ill. App. 3d 427, 433, 352 N.E.2d 285, appeal denied (1976), 64 Ill. 2d 595.

The following excerpts from count III of Joan’s petition are central to resolution of the question of whether the trial court properly found personal jurisdiction over Dorothy and Helen based upon the tortious act segment of the long-arm statute:

“4. Defendant Chauncey [Dorothy] has asserted in an affidavit * ° * that she received the jewelry ° ° * in December 1976, as gifts from the decedent.
5. Defendant Holmes [Helen] has asserted in an affidavit * * * that she received the jewelry * * 0 in December 1976, as a gift from the decedent.
6. At the time of the aforesaid purported gifts, decedent was over 75 years of age and was not of sound mind and memory; but on the contrary was in her dotage, was diseased in body, mind and memory, was wholly incapable of understanding or appreciating her relations to those who had a material claim upon her bounty, was incapable of making a just and proper inter vivos disposition of her property and did not have the mental capacity to make a good and valid gift. By reason thereof, the purported gifts to defendants Chauncey and Holmes were not the voluntary acts of decedent and are void and of no legal effect.”

Joan’s prayer for relief followed these allegations.

Examination of these allegations demonstrates that Joan has failed to allege in the relevant portions of her petition any acts on the part of Dorothy or Helen which could conceivably fall within the scope of the long-arm statute’s “tortious acts” provision. There is simply no claim made that either Dorothy or Helen ever owed any duty to Joan under the circumstances or engaged in any activity constituting a tortious breach of any duty which could satisfy the requisites of the long-arm statute and authorize the Illinois courts to assert jurisdiction over these nonresident defendants. Apparently, the trial court’s error was premised upon its analogizing the present circumstances to those clearly different situations in which relatives of an already deceased person come in and “loot” the estate prior to its being probated in court. In such cases, the tortious acts are evident. Here, in contrast, nothing in the alleged acts of Dorothy or Helen is adequate for Illinois courts to assert personal jurisdiction over them. Nothing in Joan’s arguments warrants a different conclusion. We reverse the trial court’s finding of personal jurisdiction and remand for entry of an order granting the special appearances of Dorothy and Helen.

No. 81-165 reversed; No. 81-290 reversed and remanded with directions.

STAMOS, P. J., and PERLIN, J., concur.

       Joan also sought to have the codicil declared void (count II) and the gifts set aside (count IV) on the ground of the alleged undue influence of decedent’s son, William Wrigley. These counts were dismissed and are not relevant to this appeal.

       William also called Mrs. William Bell (a friend of decedent) and Claude Brooks (a business acquaintance). On rebuttal, Joan also called the custodians of the medical records at the two institutions at which decedent was treated. None of their testimony is deemed relevant to disposition of this appeal.

       We note that William’s brief contains a lengthy recitation of the substance of several offers of proof made at trial, and that his argument relies upon facts contained therein. We wish it clear that none of that material has entered into our consideration in disposing of this appeal.

         The error in Joan’s reasoning lies in her argument that the judgment in count I, even if affirmed, will not “entitle her to the jewelry.” Joan misperceives the relief sought in count I. The sole relief available under that count would be the voiding of the codicil and the administration of decedent’s estate under the original will alone. Her right to receive the jewelry lies outside of the scope of the relief sought in count I.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    SARAH ROBINSON, Plaintiff-Appellee, v. WIEBOLDT STORES, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 81-877
    Opinion filed March 9, 1982.

      Michael W. Rathsack and Richard C. Valentine, both of Chicago, for appellant.
    John Kevin Kneafsey, P. C., of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Sarah Robinson brought this action against Wieboldt Stores, Inc., to recover damages for pain and suffering arising from a false imprisonment which occurred on November 21, 1977. The jury returned a verdict in favor of Robinson, awarding $5,000 in compensatory damages and $10,000 in punitive damages. Wieboldt Stores appeals, contending: (1) that judgment notwithstanding the verdict should have been entered in its favor because there was no evidence that a false imprisonment occurred; (2) that the judgment should be reversed and a new trial ordered because the verdict was against the manifest weight of the evidence; (3) that it was reversible error for the trial court to allow plaintiff to testify about preexisting ailments and that the incident caused her to have an “attack”; and (4) that it was reversible error for plaintiff’s counsel to repeatedly ask the jurors to put themselves in the position of plaintiff and to inject his opinions into the closing argument.

On November 21, 1977, at about 6:30 p.m., the 66-year-old plaintiff was shopping in the Evanston Wieboldt Store. She purchased a scarf on the first floor of the store with her credit card which she had for 48 years. Plaintiff chose to wear the scarf and removed the price tag and handed it to the sales clerk. The sales clerk did not object when plaintiff put the scarf around her neck. The clerk handed plaintiff a copy of the sales receipt which plaintiff put in her pocket. Plaintiff then took the escalator to the third floor of the store.

As plaintiff stepped off the escalator a security guard grabbed her by the left arm near her shoulder. The guard gave his name and showed his badge. He asked where she got the scarf and requested her to accompany him to a certain room. She told him that she purchased the scarf on the first floor and had the receipt in her pocket. During the entire confrontation the guard was holding tightly onto plaintiff’s upper arm. Plaintiff, who was black, described the guard as white, tall, weighing about 200 pounds, having dark hair and wearing a dark brown suit. The guard grabbed the receipt from plaintiff’s hand and continued to hold her upper arm. Plaintiff struggled to get the receipt back from the guard. Plaintiff testified she felt very sick, as if her head was blown off and chest was sinking in. She said she was frightened and that it seemed as if the incident lasted forever.

The guard took plaintiff down to the scarf department on the first floor. Plaintiff removed the scarf from her neck and noticed a small tag on the corner. This tag gave instructions for the care of the scarf. This was apparently what the security guard had seen before grabbing plaintiff. The sales clerk told the guard that plaintiff had purchased the scarf a short time earlier. The guard told the sales clerk that she had caused plaintiff a lot of trouble and had embarrassed her. He then walked away without apologizing to plaintiff.

Plaintiff testified that she felt very sick after the incident. She obtained some change to call a cab but was unable to complete the call because of the way she felt. She went outside the store and vomited. A clerk from the store who knew plaintiff saw her and asked what had happened. Plaintiff explained, and the clerk told her to see the manager the next day. Plaintiff said she couldn’t because she was too sick. A cab was called, and plaintiff left for home. She sent a letter to the manager of Wieboldt’s but received no response. Plaintiff stayed in bed for a week. She did not have to do so but said she simply did not feel well. She testified that she had high blood pressure prior to the incident. She also stated that she did not have angina prior to the incident but did so after-wards.

Defendant’s chief of security, Curtis Chancelor, testified that he was working in the store on November 21, 1977, at the employee’s entrance checking employee’s packages. He said he had inspected the time cards and that there were no other security personnel working that evening. He testified that it was occasionally necessary to take further steps after being shown a sales receipt because of dishonest employees. He also stated that if a sales tag was on an item of merchandise he would stop the customer in a courteous way. On cross-examination, Chancelor testified that a police officer hired as a part-time security guard fit the description of the guard given by plaintiff. Defendant never produced the guard. The jury returned a verdict in favor of plaintiff in the amount of $5000 in compensatory damages and $10,000 in punitive damages.

Defendant’s first contention on appeal is that judgment notwithstanding the verdict should have been entered in its favor because there is no evidence that a false imprisonment occurred. False imprisonment consists of the unlawful restraint, against a person’s will, of that individual’s personal liberty or freedom of locomotion. (Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 881, 357 N.E.2d 682.) Defendant, however, is afforded some protection by sections 16A — 5 and 16A — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 16A — 5, 16A — 6), which provide:

“§16A — 5. Detention. Any merchant who has reasonable grounds to believe that a person has committed retail theft may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:
(a) To request identification;
(b) To verify such identification;
(c) To make reasonable inquiry as. to whether such person has in his possession unpurchased merchandise and, to make reasonable investigation of the ownership of such merchandise;
(d) To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer;
(e) Hi the case of a minor, to inform a peace officer, the parents, guardian or other private person interested in the welfare of that minor of this detention and to surrender custody of such minor to such person.
A merchant may make a detention as permitted herein off the premises of a retail mercantile establishment only if such detention is pursuant to an immediate pursuit of such person.”
“§16A — 6. Affirmative Defense. A detention as permitted in this Article does not constitute an arrest or an unlawful restraint, as defined in Section 10 — 3 of this Code, nor shall it render the merchant liable to the person so detained.”

The standard of review to be applied by this court in deciding whether judgment notwithstanding the verdict should be entered is whether all the evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) For defendant to be awarded judgment notwithstanding the verdict, it must be proved that plaintiff’s assertions could never amount to a false imprisonment. A review of the record reveals that plaintiff’s assertions do, in fact, present a case of false imprisonment. She testified that the security guard grabbed her tightly on her upper arm while they were on the third floor of defendant’s store, restricting her freedom of locomotion. Even after presenting the guard with a sales receipt, she was forced to travel to the first floor of the store, further restricting her liberty and freedom of locomotion. To claim that plaintiff could have refused to go to the first floor and unilaterally ended the confrontation ignores the realities of the situation. For defendant to prevail, it had the burden of proving it fell within the scope of sections 16A — 5 and 16A — 6, i.e., that the actions of the security guard, defendant’s agent, were reasonable. Such a factual determination was for the jury. Since the record reveals sufficient evidence to support the jury’s determination that plaintiff was falsely imprisoned and that defendant’s actions were unreasonable, defendant’s request for judgment notwithstanding the verdict was properly denied.

Defendant also contends that punitive damages are inappropriate. It is important to note, however, that defendant made no objection to the instruction on punitive damages given to the jury. Failure to object to an instruction at the jury instructions conference constitutes a waiver of that objection. (Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 342, 387 N.E.2d 426.) Defendant’s contention has been waived and cannot be raised for the first time on appeal.

In any event, we believe there was a factual basis for the punitive damages instruction. Such damages are permitted where an arrest is effected recklessly, oppressively, insultingly or wilfully, with a design to oppress and injure. (Shelton v. Barry (1946), 328 Ill. App. 497, 507, 66 N.E.2d 697.) The security guard’s actions in grabbing plaintiff tightly by the upper arm and continuing to hold her tightly after he had been shown a sales receipt provide a sufficient basis for an instruction on punitive damages.

Defendant argues that punitive damages should not be awarded against a corporate defendant for acts committed by an employee. This contention, as with the objection to the instruction on punitive damages, is waived since no objection was made at trial. (Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 342.) Even if no waiver occurred, punitive damages are not foreclosed against this corporate defendant. Punitive damages may be awarded against a master or other principal because of the acts of an agent only under a limited set of circumstances. One such circumstance is where the principal or a managerial agent of the principal ratified or approved the act of the agent. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 36-37, 330 N.E.2d 509, quoting Restatement (Second) of Agency §217C (1958).) In the present case, defendant has continued to defend the actions of its agent throughout the course of this litigation and has shown no attempt to alter its procedures in regard to situations such as the one encountered by plaintiff. In addition, defendant has failed to apologize to plaintiff for what defendant apparently feels were proper actions by its security guard. Under these circumstances, it was not error for the trial court to instruct the jury on punitive damages.

Defendant’s next contention is that the jury verdict is against the manifest weight of the evidence and should be reversed. A reviewing court will not disturb a jury verdict unless it is unreasonable, arbitrary and unsupported by the evidence. (Stringer v. McHugh (1975), 31 Ill. App. 3d 720, 722, 334 N.E.2d 311.) This includes the jury’s award of damages, which is also within its discretion. (See Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 452,158 N.E.2d 63, appeal dismissed (1959), 361 U.S. 127, 4 L. Ed. 2d 180, 80 S. Ct. 256.) Defendant has offered, and the record reveals, no reason to believe that the jury verdict was unreasonable, arbitrary and unsupported by the evidence.

Defendant’s next contention is that it was reversible error for the trial court to permit plaintiff to testify about pre-existing conditions such as high blood pressure and that the incident caused her to have angina and an “attack.” Defendant argues that plaintiff was not competent to testify to these conditions and that since her testimony was the only evidence that such conditions existed, it was reversible error to admit the testimony. At the outset, we note that defendant properly objected to this testimony both prior to this particular questioning and during the testimony. Plaintiff’s assertion that a waiver occurred is therefore without merit.

A similar question was faced by the Illinois Supreme Court in American Smelting & Refining Co. v. Industrial Com. (1933), 353 Ill. 324, 187 N.E. 495. That court stated:

“As to whether or not he is suffering from lead poisoning is a scientific question that must be determined by professional men, skilled in the practice of medicine and the diagnosing of human ailments. This is not a case where there is a traumatic injury resulting in a loss of or injury to some portion of the human body about which the plaintiff is competent to testify, but is a scientific subject, to be determined from objective symptoms as to the type of human ailment from which he suffers.” (353 Ill. 324, 329.)

In Kozlowski v. City of Chicago (1904), 113 Ill. App. 513, the court held it was improper for a plaintiff to testify about the effect of an injury to his health because the question called for the opinion of a witness upon a matter in which he was incompetent to testify. 113 Ill. App. 513, 516.

While it would have been proper for plaintiff to describe any symptoms or physical limitations which she did not experience prior to the incident in Wieboldt’s (Franklin v. Randolph (1971), 130 Ill. App. 2d 801, 805-06, 267 N.E.2d 337), as well as testify to how she felt, it was improper for her to testify concerning special medical conditions such as high blood pressure and angina. Plaintiff was not qualified as an expert and was therefore incompetent to testify regarding specific medical diagnoses.

Since plaintiff’s testimony was the only evidence concerning the extent of her injuries, the error in admitting her incompetent medical testimony, which was a substantial portion of the testimony, was prejudicial and mandates reversal of the award of damages. Although plaintiff’s complaint sought recovery for pain and suffering, there is a strong likelihood that the prejudicial effect of the improper medical testimony weighed heavily in the award of damages. Since this error reflects only on the amount of damages that was awarded and not on the issue of liability, this cause is reversed and remanded on the issue of damages alone.

Defendant’s final contention is that it was reversible error for plaintiff’s counsel to repeatedly inject his opinion and ask the jurors to put themselves in the place of plaintiff. It was improper for plaintiff’s counsel, during opening statement and closing argument, to ask the jurors to put themselves in the shoes of plaintiff (see Offutt v. Pennoyer Merchants Transfer Co. (1976), 36 Ill. App. 3d 194, 204, 343 N.E.2d 665), and to inject his personal opinion in the argument. (See Kerns v. Lenox Machine Co. (1979), 74 Ill. App. 3d 194, 198, 392 N.E.2d 688.) Any error, however, is waived as no objection was made to the comments during the trial.

We affirm the judgment in favor of plaintiff on the issue of liability. We reverse the award of both compensatory and punitive damages and remand the case to the trial court on the issue of those damages alone.

Affirmed in part; reversed in part and remanded.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURT DAVIS, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2158
    Opinion filed March 10, 1982.

      James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.
    Rernard Carey, State’s Attorney, of Chicago (Marcia R. Orr, Mary Ellen Dienes, and Lawrence T. Krulewich, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The defendant, Curt Davis, was charged by indictment with armed robbery. He was convicted by a jury and sentenced to 6 to 12 years’ imprisonment. On appeal, the defendant argues that he was not proved guilty beyond a reasonable doubt and that he was denied a fair trial because the State did not update its answer to defendant’s discovery motion and because the State’s rebuttal argument was improper.

On August 29,1975, Tank’s Tavern, which was owned and operated by Helen and Homer Wright, was robbed. Helen Wright was bartending at the time of the robbery.

Helen testified that the defendant and another person entered the packaged goods section of the bar. The defendant stood about three feet across from her and purchased a quart of beer. The other person asked to use the washroom, walked toward it, and then fired a gun at the ceiling and announced a stickup. The defendant pulled out a gun and fired at Helen. She picked up a gun, fired back and then hid under the bar sink. Another man went behind the bar and took her gun. He also took money from the cash register and some liquor. Approximately four or five minutes later, Helen heard some shots and then silence. She got up and saw the defendant lying on the floor in a pool of blood. The defendant was struggling with a patron, Percy Benson, and was trying to move toward the cigarette machine.

On cross-examination, Helen Wright denied that at the preliminary hearing she testified that it was the defendant who asked to use the washroom after the man behind him announced the robbery.

Chicago police officer Leon Bowens testified that on August 29,1975, when he arrived at Tank’s Tavern, the defendant lay bleeding on the floor and was surrounded by several men. Officer Bowens saw a small caliber gun laying under the cigarette machine near the defendant.

Investigator Michael Cummings inventoried a .22-caliber gun which was recovered from under the cigarette machine. He testified that it contained five live .22-caliber rounds. The gun could have held six rounds. No expended shells were given to Cummings.

Mary Ann Mohan, a microanalyst for the Chicago Police Department, testified that blood stains on the .22-caliber gun were of Type A blood. She stated that the defendant had Type A blood.

Lonnie Burks, a patron at the tavern, testified that the defendant took his watch while he was lying on the floor. Thereafter, Burks heard a few shots. When he got up, Burks saw the defendant lying on the floor bleeding and trying to move towards a gun under the cigarette machine. Percy Benson was kicking the defendant, and A1 McClain was trying to restrain Benson.

On cross-examination, Burks stated that he had been at the tavern for about 4/2 hours and had had five or six beers before the robbery occurred. He stated that he looked at the defendant’s face when he gave the defendant his watch. There were no lights on the floor, of the tavern. Burks also testified that on the day of the trial, he discussed the robbery with the prosecutor and the State’s witnesses.

Ruby Thomas testified that she was a patron at the tavern when the robbery occurred. She stated that the man lying on the floor after the robbery was the person who shot at Helen Wright.

Albitron McClain testified that his wallet was taken during the robbery. After the robbers left, McClain got up and saw Percy Benson kicking the man on the floor who was crawling toward the cigarette machine. McClain testified that he told Benson to stop and wait for the police to arrive.

On cross-examination, McClain testified that he did not remember telling defense counsel that he did not know if the man who bought beer around the time of the robbery was involved in the robbery. He also denied telling defense counsel that the reason he attempted to stop Percy Benson from kicking the man on the floor was because he did not think the man on the floor was one of the robbers.

Homer Wright testified that when the robbery occurred, he was in the living quarters in the rear of the tavern. He heard some shouting and gunshots and looked through a peephole and saw four men with guns in the front part of the tavern. Homer identified the defendant as one of the men and said the defendant was holding a .38, a .32 or some kind of pistol. He watched the robbers for about two minutes and, with his revolver and 12-gauge shotgun, went outside to the front of the tavern and waited behind a parked car. When three of the robbers left the tavern, Homer called to them and they ran. Then, as the defendant was backing out of the tavern, Homer shouted at him. The defendant turned and fired at Homer and Homer fired back. The defendant fell back on the floor.

Homer further testified that he identified the defendant and a co-defendant at a lineup but on cross-examination admitted that he could not find the defendant in either of the State’s photographs of the lineup he had viewed. Homer stated that he did not tell the police or investigators from the Public Defender’s office that he had fired his shotgun at the defendant. He admitted that if an innocent person was shot in a tavern by one of its owners, that person could have a claim against the owners. On redirect examination, Homer testified that he could not remember whether the defendant was in the lineup.

The sole defense witness was Gregory Middlebrooks. He testified that he went to the home of A1 McClain with defense counsel and McClain said that he stopped the people from kicking the wounded man on the floor of the tavern because he felt that the man was not involved in the robbery.

The jury returned a guilty verdict against the defendant.

The defendant’s first argument on appeal is that he was not proved guilty beyond a reasonable doubt because the identification testimony of Helen Wright, Lonnie Burks and Ruby Thomas was weak and because the Wrights’ testimony was conflicting, contradictory and biased.

An identification by one credible witness who had a good opportunity to view the defendant under circumstances that would permit a positive identification is sufficient to sustain a verdict of guilty. (People v. Rodriguez (1980), 89 Ill. App. 3d 941, 412 N.E.2d 655.) The key factor is whether the witness had an adequate opportunity to view the offender at the time of the commission of the crime. (People v. Brown (1977), 50 Ill. App. 3d 348, 365 N.E.2d 907.) The conditions for viewing the offender need not have been perfect and the time for observation need not have been of a prolonged nature. People v. Reed (1980), 80 Ill. App. 3d 771,400 N.E.2d 688.

At trial, Ruby Thomas testified that the person lying on the floor bleeding (who was identified by other witnesses as the defendant) was one of the offenders. We believe the jury could find her testimony credible, despite the fact that she could not identify the person on the floor. She was at the robbery and was near the packaged goods section of the tavern during the time the defendant purchased the beer.

Helen Wright observed the defendant when he came into the tavern, during the time he purchased the quart of beer from her, and after the robbery when he was lying on the floor. She testified that the defendant was less than three to four feet across from her when he purchased the beer. She also testified that the bar was not brightly lit but that she could see well. We believe this evidence supports a finding that Helen Wright’s identification was positive and credible.

We also reject defendant’s contention that Lonnie Burks’ identification was weak because he did not view the defendant at any pretrial lineups and because he saw a photograph array that included the defendant’s picture shortly before trial. The weight to be afforded that identification, however, was for the jury to decide. We believe there was ample evidence for the jury to find that the in-court identification by Burks was positive and that Burks had ample opportunity to view the defendant at the time of the robbery. Burks testified that he saw the defendant when the defendant took his watch. Burks was lying on the floor on top of another patron. Although he testified that “it was kind of dark” on the floor, Burks also said that he looked up at the defendant long enough to recognize him.

The defendant also argues that he was not proved guilty beyond a reasonable doubt because Homer and Helen Wright were biased witnesses who had a financial interest in proving that the defendant was not an innocent bystander. He contends that the Wrights could have been subject to criminal and civil liability for the wrongful shooting of a person in their tavern. He also argues that Helen Wright’s pretrial and trial testimony was contradictory as to which offender asked to use the washroom and contends that it was incredible to believe that one of the robbers would have gone behind the bar to disarm her when she had just fired her gun. The defendant further argues that Helen Wright’s testimony that the defendant had shot at her was not supported by the evidence since the gun found near him did not have a spent cartridge. Finally, the defendant questions the credibility of Homer Wright’s testimony since he mistakenly identified the caliber of the defendant’s gun and since he said he had identified the defendant at a lineup when the defendant was not in the lineup pictures.

Questions concerning credibility of witnesses and the weight to be afforded contradictory testimony are for the trier of fact to decide; and where the jury has made a determination based upon conflicting testimony, a reviewing court will not disturb that decision unless the evidence is so improbable as to raise a reasonable doubt as to the defendant’s guilt. (E.g., People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. McVay (1981), 98 Ill. App. 3d 708, 424 N.E.2d 922.) After reviewing the record in this case we do not find, as a matter of law, that the testimony of the State’s witnesses was so incredible as to raise a reasonable doubt of the defendant’s guilt. The defendant was arrested at the scene of the robbery, as he lay injured on the floor, and was identified at trial by three eyewitnesses. A fourth witness testified that the injured person was one of the robbers. Although the defendant argued that he was an innocent bystander and that the State’s witnesses had conspired to protect the Wrights, the jury assessed and rejected this defense theory. We find no error in this regard and believe the evidence overwhelmingly established the defendant’s guilt.

The next issue raised by the defendant is whether he is entitled to a new trial as a sanction for the State’s failure to inform defense counsel of the photographic identification of the defendant by Lonnie Burks. During discovery, the defendant had requested information regarding any witness identifications, including photographic, of the defendant. During cross-examination of Lonnie Burks, defense counsel discovered that Burks had identified the defendant’s picture from an array of photographs two weeks before trial which was three years after the robbery.

The State is under a continuing duty to disclose to defense counsel any additional material or information that comes to its attention after pre-trial discovery has been completed. (People v. Richardson (1977), 48 Ill. App. 3d 307, 362 N.E.2d 1104.) However, unless the undisclosed evidence is favorable to the defendant or material to his guilt, the error does not warrant a new trial. People v. Williams (1980), 91 Ill. App. 3d 631, 414 N.E.2d 1235.

The State contends that an identification confrontation did not occur when Burks was shown the photographic array in question and that, therefore, it was not required to disclose that viewing to the defendant. Assuming arguendo that the viewing resulted in an out-of-court identification that should have been disclosed to the defendant, we find that that information was not material to the defendant’s guilt.

After the defendant’s counsel discovered that Burks had viewed the defendant’s picture, he moved to suppress the defendant’s in-court identification on the grounds that it was tainted by the photographic viewing. The trial court denied the motion and held that the in-court identification was independent of the pretrial viewing and that it was based on Burks’ observations of the defendant at the time of the robbery. We agree with that conclusion (see People v. Williams; People v. Lomax (1980), 89 Ill. App. 3d 651, 411 N.E.2d 1212) and hold that the discovery error, if any, does not require reversal of the defendant’s conviction.

The final issue raised by the defendant is whether the defendant was denied a fair trial due to prosecutorial misconduct during rebuttal argument. During rebuttal, the prosecutor accused defense counsel of confusing the issues and referred to the defense theory that the defendant was an innocent bystander as nonsense. The defendant argues that the prosecutor improperly expressed his personal opinion of the defense theory, disregarded the court’s admonishments and impugned defense counsel’s motives by implying that he was attempting to defraud the jurors.

A prosecutor may not express his personal beliefs as to the credibility of the witnesses or of the defendant’s defense. (See People v. Hawkins (1980), 88 Ill. App. 3d 178, 410 N.E.2d 309; People v. Martin (1975), 29 Ill. App. 3d 825, 331 N.E.2d 311.) We believe the prosecutor committed error in the instant case when he characterized the defense theory as nonsense, as “the most ridiculous thing I’ve ever heard,” and when he said, “if you buy that [the defense theory], I’m sure counsel would like to talk to you after this case and sell you some stock.” We do not believe, however, that the prosecutor impugned the integrity of defense counsel because he did not accuse the defendant or his counsel of perpetrating fraud or suborning perjury. See People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295; People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.

Improper comments do not result in the denial of a fair trial where such remarks do not constitute a material factor in the defendant’s conviction. (People v. Miller (1981), 97 Ill. App. 3d 970, 423 N.E.2d 1152.) The materiality of the improper remarks must be determined based on a review of the facts in each case. In the instant case, the trial court sustained defense objections to many of the prosecutor’s statements and the jury was instructed to disregard the remarks. Such actions have been viewed as sufficient to cure the error (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Bluitt (1981), 98 Ill. App. 3d 19, 424 N.E.2d 62) and to find that the jury was not unduly influenced or misled (People v. Grayson (1980), 89 Ill. App. 3d 766, 411 N.E.2d 1177). In the instant case the errors arising from the prosecutor’s improper comments were cured. Furthermore, we do not believe they were a material factor in the defendant’s conviction since the evidence against the defendant was overwhelming. (People v. Smith (1980), 88 Ill. App. 3d 897, 410 N.E.2d 973; People v. Eagle (1979), 76 Ill. App. 3d 427, 395 N.E.2d 155.) Therefore, we will not reverse the defendant’s conviction and remand his case for a new trial.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       Percy Benson was deceased at the time of the trial.


author: PRESIDING JUSTICE WHITE JUSTICE RIZZI,

text:
    EVELYN LAMBERT, Adm’r of the Estate of Richard P. Lambert, Jr., Deceased, Plaintiff-Appellee, v. THE VILLAGE OF SUMMIT et al., Defendants.—(METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Defendant-Appellant.)
    First District (3rd Division)
    No. 80-1504
    Opinion filed March 10, 1982.

      Allen S. Lavin, of Chicago (Charles W. Boyd and Paul D. Lindauer, Jr., of counsel), for appellant Metropolitan Sanitary District of Greater Chicago.
    James T. Holton, of Chicago (A. J. Hardiman and Eugene C. Hardiman, of counsel), for appellee.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendant, Metropolitan Sanitary District of Greater Chicago (District), brings this permissive interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) from an order of the trial court denying both its motion to dismiss and its motion for summary judgment. The appeal presents the question:

“Can a wrongful death action be brought by an administrator if the decedent would have been barred by the two year personal injury statute of limitations from maintaining a personal injury suit immediately prior to his death?”

On April 2, 1976, plaintiff, widow and administrator of the estate of Richard P. Lambert, Jr., filed a wrongful death action against the District and the Village of Summit. In its application for leave to appeal, the District summarized the allegations of the complaint as follows: that in 1951 and 1952, the decedent was the mayor of the Village of Summit; that at that time a controversy existed between Summit and neighboring communities and the District concerning the District’s operation of sludge lagoons on its property in the area; that in 1951 and 1952, the decedent’s duties as mayor included inspection of the lagoons and adjacent areas, buildings and structures and obtaining samples of the sludge for testing; that the decedent suffered a lung infection as a proximate result of the careless, negligent and improper operation of the sludge lagoons by the District; that as a result of these acts in 1951 and 1952, the decedent died on January 27,1975; and that the decedent left as his survivors his widow and a daughter.

On April 23,1976, the District filed a motion to dismiss the complaint on the ground that the administrator was barred by section one of the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, pars. 1, 2) because an action for personal injuries, on the part of the decedent prior to his death, would have been barred by the applicable two-year statute of limitations. On July 15, 1976, the trial court denied this motion “without prejudice” because, in its opinion, the statute of limitations in a wrongful-death action does not begin to run until the date of the decedent’s death. Subsequently, on December 12, 1979, the District filed a motion to dismiss on the further ground that at the time of the alleged injury to the decedent, the defense of governmental immunity was still available to the District in actions sounding in tort. This motion to dismiss was merged into a motion for summary judgment which incorporated depositions showing that Lambert knew and believed from February or March, 1953, to the date of his death that his injuries might have been caused by the occurrences alleged in the complaint. In her reply to the District’s motion for summary judgment, plaintiff admitted, for purposes of the motion, that from approximately March 1953 the decedent was aware that the incidents in question could have been the cause of his lung condition which resulted in his death in January 1975. The trial court then entered the order from which this interlocutory appeal is taken, and we allowed the District’s application for leave to appeal.

Section one of the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 1) provides:

“Whenever 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 such 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.” (Emphasis added.)

The act also provides that every such action shall be commenced within two years after the death of such person. (Ill. Rev. Stat. 1975, ch. 70, par. 2.) Under the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, pars. 1 through 12a and 13 through 27), actions for damages for an injury to the person shall be commenced within two years after the cause of action accrued. Thus, the first question presented is whether the expiration, in the decedent’s lifetime, of the limitation period applicable to his action for personal injuries will defeat an action under the Wrongful Death Act for his death resulting from the injuries.

The language of section one of the Wrongful Death Act has been construed in several Illinois Supreme Court cases. In Mooney v. City of Chicago (1909), 239 Ill. 414, 88 N.E. 194, the court stated:

“One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death.” (Emphasis added.) (239 Ill. 414, 423.)

In that case, the decedent had been injured on May 5, 1903. After the accident, he executed an instrument of release in satisfaction for the damages resulting from the accident, acknowledging full satisfaction of all claims against his employer on account of the injuries sustained. His employer made the payments specified in the release. The decedent died on May 23, 1903. The supreme court stated that if the decedent had released the cause of action, the Wrongful Death Act did not confer upon the administrator any right to sue and held that an instruction was erroneous in ignoring the affirmative defense of release.

Similarly, in Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 30 N.E.2d 14, the court stated:

“[T]he liability there created [by section one of the Wrongful Death Act] depends upon the condition that the deceased, at the time of his death, had he continued to live, would have had a right of action against the same person or persons for the injuries sustained. If the deceased had no right of action at the time of his death, the personal representative has none under the Injuries Act." (Emphasis added.) (374 Ill. 506, 513-14.)

In Biddy, the plaintiff had brought an action under our Injuries Act (also known as the Wrongful Death Act) and alleged that negligence of the defendants in the operation of an airplane was the cause of the decedent’s death. The decedent and his employer had elected to be bound by the Workmen’s Compensation Act of the State of Michigan. Under that act, the decedent, had he lived, would have been required to elect whether he would demand compensation from his employer or sue the defendants in an action at law for damages. The court stated:

“Had he [decedent] survived the accident and made the election to accept compensation and later died from the injuries, the plaintiff could not now maintain this action, for at the time of her intestate’s death he had no cause of action against the defendants.” (374 Ill. 506, 514.)

But Biddy died without having made that election. The court held that when the decedent’s dependents elected to claim compensation from his employer under the Michigan law, they became bound by the provisions of that act and that the trial court erred in sustaining the plaintiff’s motion to strike the defendants’ defense setting up the Michigan statute. The court stated: “Plaintiff has no greater right to maintain an action against the defendants under the Injuries statute than Biddy [decedent] would have had if he had lived.” 374 HI. 506, 515.

On the authority of these cases, we conclude that there can be no recovery under our Wrongful Death Act where the decedent once had a cause of action, but was not entitled to maintain that action and recover damages at the time of his death. (See also Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 613, 131 N.E.2d 525; Howlett v. Doglio (1949), 402 Ill. 311, 319, 83 N.E.2d 708; Clarke v. Storchak (1943), 384 Ill. 564, 571-72, 52 N.E.2d 229, appeal dismissed (1944), 322 U.S. 713, 88 L. Ed. 1555, 64 S. Ct. 1270; Little v. Blue Goose Motor Coach Co. (1931), 346 Ill. 266, 271, 178 N.E. 496. ) We further conclude that since the decedent in the case at bar was not entitled to maintain an action and recover damages for his injury at the time of his death, because the two-year personal injury statute of limitations had run, his administrator cannot now maintain this action for wrongful death.

The only Illinois case cited by the parties which reached the precise question presented is Donnelly v. Chicago City Ry. Co. (1911), 163 Ill. App. 7. That case arose out of a collision on May 29,1897, between a hose carriage and an electric car. Plaintiff’s intestate was thrown to the ground and received an injury to his head. He died on May 7,1900, allegedly as a result of this injury. Suit was brought on May 6, 1902, and subsequently, judgment was entered upon a verdict of $5,000. On appeal it was argued that the suit was barred by the statute of limitations. The court found that no assignment of error was based specifically upon the proposition that the suit was barred by the statute of limitations and held that since the error was not raised by any assignment of error, it was not open to review. The court proceeded, however, to conclude that even if the error was well assigned, there was no merit in the contention. In that court’s opinion, “the only limitation on the right of the personal representative of the injured person to sue is that contained in the [wrongful death] act which gives the right to the personal representative to sue, namely two years * * * from the date of the death of the person injured.” (163 Ill. App. 7, 15.) The court expressed its rationale in the following words:

“In our opinion, this language [of section one of the Wrongful Death Act] refers to the right of the injured person as it existed immediately after the accident and not to the situation as it would exist more than two years after the accident, when the right of the injured party had expired by the limitation. The action for the death is different from the action by the injured man himself, in this, that two things must exist; the injury must have been sustained because of the neglect or default of the defendant, and the person injured must have died. It is not until death occurs that the right of action in the widow and next of kin through the administrator exists.” 163 Ill. App. 7,15.

We do not follow the decision in Donnelly for three reasons. First, the Donnelly court’s analysis of the question presented in this appeal is obiter dicta. Secondly, the aforementioned rationale of the Donnelly court is inconsistent with our supreme court’s opinions in Mooney and Biddy, which require in wrongful death actions that the decedent have a right of action and recovery at the time of his death. Thirdly, policies promoted by statutes of limitations would be undermined if we were to follow Donnelly. The primary purpose of limitation periods, according to our supreme court, is “to require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims.” (Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 El. 2d 129, 132, 334 N.E.2d 160.) In this way, statutes of limitations attempt “to insure that a defendant will have a reasonable opportunity to investigate a claim and prepare a defense within a time period in which facts are still accessible and witnesses are still available.” (Lind v. Zekman (1979), 77 Ill. App. 3d 432, 435, 395 N.E.2d 964.) These policy considerations apply with equal validity whether the plaintiff is an injured party or his personal representative.

Plaintiff relies on Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 356 N.E.2d 529, and Welch v. Davis (1951), 410 Ill. 130, 101 N.E.2d 547. Both cases involved actions by the administrator for the estate of the wife against the executor for the estate of the husband. In Berardi, an airplane piloted by the husband crashed and his wife was a passenger. Both died. In Welch, the husband shot his wife and then shot and killed himself. His wife died a few minutes later. In each case, the court held that the administrtor of the wife’s estate may maintain an action for wrongful death despite the immunity from suit by virtue of the marital relationship. The apparent rationale for these decisions is 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. From these cases, plaintiff argues: “Defenses which would have existed against a decedent, if death had not ensued, do not necessarily exist against his personal representative.” She, however, fails to show how these cases affect the defense of the statute of limitations, and we do not find them dispositive of the question presented. Furthermore, neither of these cases attempted to overrule Biddy or Mooney.

Plaintiff also relies upon Wilson v. Tromly (1949), 404 Ill. 307, 89 N.E.2d 22, and Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838. Neither case involves a fact situation or issue even remotely similar to the instant case. Wilson held that a counterclaim filed under the Wrongful Death Act was barred by the time limitation of that act even though filed within the time fixed by law for filing defensive pleadings. Bowman Dairy Co. held that an amended complaint filed under the Wrongful Death Act was governed by its time limitation but not barred thereby where the amendment met all the requirements of section 46 of the Civil Practice Act, and therefore related back to the original complaint which was filed within that time. In the case at bar, unlike Wilson and Bowman Dairy Co., the time requirement of the Wrongful Death Act was clearly met. Here plaintiff argues that the time limitation contained in the Wrongful Death Act is the only limitation on the right of the personal representative of the injured person to sue. These cases do not support this argument.

At oral argument of this case, a question arose concerning the nature of the statute of limitations as an affirmative defense. An argument was made that until a defendant raises the affirmative defense of the statute of limitations, the plaintiff can maintain his action even though it appears that the action is barred by such statute. The argument apparently continues that the decedent’s action was not barred at the time of his death because the statute of limitations was never raised. We agree that the statute of limitations is not at issue until it is raised by the defendant as an affirmative defense. (Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 531, 391 N.E.2d 177.) However, we do not find this argument persuasive. Mooney v. City of Chicago, discussed above, involved the defense of release which is also an affirmative defense. (Mooney v. City of Chicago (1909), 239 Ill. 414, 422; Ill. Rev. Stat. 1975, ch. 110, par. 43(4).) As an affirmative defense, a release must be raised in the trial court pleadings, and if it is not properly pleaded, it is deemed waived. (See Alco Standard Corp v. F. & B. Manufacturing Co. (1970), 132 Ill. App. 2d 24, 28, 265 N.E.2d 507, modified on appeal (1972), 51 Ill. 2d 186.) We, therefore, conclude that the classification of the statute of limitations as an affirmative defense is of no consequence.

We also note that a statute of limitations is generally considered to affect the remedy only, and not a substantive right. (Fender v. St. Louis Southwestern Ry. Co. (1979), 73 Ill. App. 3d 522, 526, 392 N.E.2d 82; Cook v. Britt (1972), 8 Ill. App. 3d 674, 676, 290 N.E.2d 908.) In this, the statute of limitations may be distinguishable from a release. However, our concern is only whether the decedent was entitled to maintain an action and recover damages at the time of his death. For the purpose of this inquiry, we find no reason to distinguish the defense of release from the defense of the statute of limitations.

In sum, we conclude that the expiration, in the decedent’s lifetime, of the limitation period applicable to his action for personal injuries will defeat a wrongful-death action for his death resulting from the injuries. Therefore, we need not address the second question raised in this appeal concerning governmental immunity.

For the reasons stated above, the order of the circuit court of Cook County is reversed.

Reversed.

McNAMARA, J., concurs.

JUSTICE RIZZI,

dissenting:

I respectfully dissent from the conclusion of the majority that the statute of limitations for bringing a personal injury action is controlling in an action brought pursuant to the Wrongful Death Act. In my opinion, the period of limitation for bringing an action under the Wrongful Death Act is controlled solely by the period of limitation contained in the Act itself, which specifically states that every such action shall be commenced within two years after the death of the decedent. (Ill. Rev. Stat. 1979, ch. 70, par. 2.) Therefore, in the present case, since the suit was filed under the Wrongful Death Act and was commenced within two years after the death of the decedent, I would affirm the trial judge’s order denying defendant’s motion for summary judgment based on the statute of limitations for bringing a personal injury action.

I believe the majority in this case is interpreting the Wrongful Death Act as if it is a survival action type of death statute, which it is not. Under a survival action type of death statute, which merely continues the decedent’s own cause of action beyond his death and enhances it with damages for the death, it is readily apparent that any defense, including the statute of limitations, which might have been set up against the decedent if he had lived is still available to the defendant. (Prosser, Torts §127, at 910 (4th ed. 1971).) However, a Wrongful Death Act is markedly different. A Wrongful Death Act does not continue the decedent’s own cause of action. Rather, it creates a separate and independent cause of action unknown to the common law, which by its nature does not come into existence until the death occurs and which is for the exclusive benefit of the surviving spouse and next of kin of the decedent. (Ill. Rev. Stat. 1979, ch. 70, par. 2.) It follows that if a suit brought under the Wrongful Death Act is commenced within two years after the death of the decedent, it should not be dismissed merely because it was not filed within two years from the date of the accident.

Section 1 of the Wrongful Death Act states:

Whenever the death of a person shall be caused by wrongful act * * * and the act * * * is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages 0. * * then 0 ° ° in ° ° ° such case the person who 6 ” e would have been liable if death had not ensued, shall be liable to an action for damages. (Emphasis added.) Ill. Rev. Stat. 1979, ch. 70, par. 1.

I believe the language in section 1 of the Act which states that “[wjhenever the death of a person shall be caused by wrongful act 000 and the act * * * is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages” relates solely to the character of the defendant’s act causing the death. In other words, in order to recover under the Act, there must have been a legally recognized tortious act committed by the defendant that caused the decedent’s death.

I believe the remaining language in section 1 of the Act, which provides that “the person who * * * would have been liable if death had not ensued, shall be liable to an action for damages,” relates to the fact that at common law, and in Illinois prior to enactment of the Act, any action for the recovery of damages for a tortious act abated if death ensued, and the person who would have been liable if death had not ensued would not have been liable to anyone in an action for damages. The language in section 1 of the Act simply changes that common law principle so that the person who would not have been liable if death had ensued now is “liable to an action for damages” without regard to the question of the time of suit or death. This interpretation and reasoning is consistent with the fact that the time limitation for filing a suit, i.e., two years after the death, is clearly expressed in another part of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 2.

The majority’s interpretation of the Act fails to distinguish and apply the underlying differences between a Wrongful Death Act and a survival action type of death statute. As a result, the majority concludes that the language of the Wrongful Death Act requires that at the time the suit is filed, the decedent must have been entitled to have maintained an action had death not ensued. However, the majority’s conclusion and interpretation of the Act was unequivocally rejected by the supreme court in Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 356 N.E.2d 529. The Herget court stated and held:

“The defendant contends that since the Married Woman’s 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. Tetri could not have maintained an action against her husband or his estate had she survived the crash.
0 * «
* * • [I]n Welch v. Davis, 410 Ill. 130, * e * [t]he husband * # * shot and killed his wife and immediately thereafter * * * 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’s administrator was asserting the independent rights of the wife’s surviving child against the husband’s executor. 410 Ill. 130,133-34.
# O #
We consider * * * that the dismissal by the circuit court was erroneous.” (Emphasis added.) 64 Ill. 2d 467, 470-72, 356 N.E.2d 529, 531-32.

To support its position, the majority relies upon Mooney v. City of Chicago (1909), 239 Ill. 414, 88 N.E. 194, and Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 30 N.E.2d 14. However, both of those cases predate Herget, and the statements in Mooney and Biddy that are relied upon by the majority here are inconsistent with the opinion in Herget. I believe we should be following Herget. Moreover, the precise issue involved in this case was discussed in Donnelly v. Chicago City Ry. Co. (1911), 163 Ill. App. 7. The Donnelly court stated:

“The second section [of the Wrongful Death Act] after reciting that the amount recovered shall be for the exclusive benefit of the widow and next of kin of the deceased, had, at the time the suit before us was brought, a provision that ‘every such action shall be commenced within two years after the death of such person.’ In the motion for rehearing the appellant urges upon us that inasmuch as it appears on the face of the declaration that more than two years elapsed from the time of the alleged injury to the bringing of this action, and that between the time of the alleged injury and Wren’s death more than two years elapsed, his right of recovery for damages for such injury had been defeated by the operation of the limitation statute, and hence the right of his personal representative to recover was also defeated. In other words, their contention is that if a person is injured through the negligence of another and death does not ensue for two years after the date of the accident, there can be no recovery by the personal representative of the deceased. We do not so construe the statute. The language is, ‘Whenever the death of a person shall be caused by the 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,’ etc.
In our opinion, this language refers to the right of the injured person as it existed immediately after the accident and not to the situation as it would exist more than two years after the accident, when the right of the injured party had expired by the limitation. The action for the death is different from the action by the injured man himself, in this, that two things must exist; the injury must have been sustained because of the neglect or default of the defendant,' and the person injured must have died. It is not until death occurs that the right of action in the widow and next of kin through the administrator exists.
We hold, therefore, that the only limitation on the right of the personal representative of the injured person to sue is that contained in the act which gives the right to the personal representative to sue, namely two years * * * from the date of the death of the person injured. In other words, as stated in Prouty v. City of Chicago, 250 Ill. 223, the right of action is statutory and not a survival of decedent’s right of action for personal injury.” (Emphasis added.) 163 Ill. App. 7, 14-16.

In its opinion, the majority refuses to accept what is stated in Donnelly because “policies promoted by statutes of limitations would be undermined if we were to follow Donnelly,” and these “policy considerations apply with equal validity whether the plaintiff is an injured party or his personal representative.” To me, this case does not involve policy considerations for two statutes of limitations. This is not a personal injury action. It is solely a wrongful death action, and there is a single statute of limitations in the case, which is two years from the date of death. Ill. Rev. Stat. 1979, ch. 70, par. 2.

Moreover, the policy considerations stated by the majority are simply not applicable here. As an example, the majority states, “The primary purpose of limitation periods » * * is » * * ‘to discourage delay in the bringing of claims.’ ” However, a wrongful death action, by its nature, cannot be brought until the death occurs. Clearly, plaintiff in this case did not delay in the bringing of this suit. Also, the majority states that “statutes of limitations attempt ‘to insure that a defendant will have a reasonable opportunity to investigate a claim and prepare a defense within a time period in which facts are still accessible and witnesses are still available.’ ” On balance, I do not see why this policy consideration should bar plaintiff’s action in the present case. Plaintiff has the burden of proof. Although plaintiff filed her suit within two years after the date of death as required by the statute, if there is no reasonable opportunity to investigate the claim or prepare a case within a time period in which facts are still accessible and witnesses are still available, plaintiff will not be able to prove her case. On the other hand, if she can prove her case, it would be unfair to hold that her action should nevertheless be barred.

Finally, the position taken by the majorty in this case is contrary to the position taken by most courts which have considered the question. In Prosser, Torts §127, at 912-13 (4th ed. 1971), it is stated:

“As to the defense of the statute of limitations, * * * the considerable majority of the courts have held that the statute runs against the death action only from the date of death, even though at that time the decedent’s own action would have been barred while he was living. Only a few courts hold that it runs from the time of the original injury, and consequently that the death action may be lost before it ever has accrued.”

I agree with the considerable majority of courts which have held that the statute of limitations for filing a wrongful death action runs only from the date of death. Thus, I believe that the only time limitation for filing an action under the Wrongful Death Act should be as provided in section 2 of the Act, i.e., within two years after the death.

Accordingly, I dissent from the majority. I would affirm the trial judge’s order denying defendant’s motion for summary judgment based on the statute of limitations for bringing a personal injury action.

       We recognize that this conclusion is not consistent with Prosser’s interpretation of the death acts. Prosser states:
      “It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent.” (Prosser, Torts §127, at 911 (4th ed. 1971).)
      In our opinion, our supreme court’s decision in Mooney and Biddy prevent us from taking this position. See also Annot., 167 A.L.R. 894, 899-903 (1947).

       On this same point, I note that in other types of cases, tort liability has not been barred because the alleged wrongful conduct occurred long before the resultant injury when duty and causation can be established. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 350, 367 N.E.2d 1250, 1251.) The Renslow court stated:
      “The problem of defending stale claims is also asserted by defendants. They remind us that it is possible that a woman, herself a child when injured by the tortfeasor, could late in life bear an injured child, and that this child, under the present statute of limitations, could wait until majority to bring suit. We think the likelihood of these circumstances occurring is not sufficient reason to bar all suits for reasonably foreseeable injury from preconception torts. Furthermore, the potential for a stale claim is inherent in the extended statute of limitations for a minor’s personal injury action and in our adoption of the discovery rule in certain areas.” 67 Ill. 2d 348, 358. 367 N.E.2d 1250. 1255.