## Facts

- Walter Susemiehl was injured in an automobile collision on September 7, 1938, and later died on October 31, 1938 as a direct result of those injuries.
- Henry H. Susemiehl, as administrator of Walter Susemiehl’s estate, filed suit(s) against Red River Lumber Company and Walter Gehrke based on the alleged negligent conduct that caused the collision.
- The administrator brought a wrongful-death action seeking damages for the pecuniary loss suffered by the decedent’s next of kin under Illinois’s wrongful-death statute (the “injuries act”).
- Separately, the administrator filed an action under Illinois’s survival statute seeking damages said to have accrued between the accident and the decedent’s death, including medical and hospital expenses, pain and suffering, lost wages, and funeral expenses.
- Defendants moved to dismiss the survival action, supporting their motions with affidavits stating (1) the decedent’s death resulted directly from the injuries in the collision and (2) a wrongful-death action based on the same occurrence was already pending, which defendants argued provided the administrator’s only remedy.
- The circuit court sustained the motions to dismiss the survival action; the administrator elected to stand on the complaint, and judgment was entered for defendants, barring the action and awarding costs.
- The administrator appealed the dismissal of the survival action.

## Issues

1. May an administrator maintain both (a) a wrongful-death action for the next of kin and (b) a separate survival action for the decedent’s pre-death damages when the injuries sued upon caused the decedent’s death?
2. Does Illinois law treat the wrongful-death statute as the exclusive remedy in that setting, requiring dismissal of the survival action?

## Decision

- The appellate court affirmed the judgment dismissing the survival action.
- The court held that when the injuries result in death and a wrongful-death claim lies, Illinois law does not allow a separate action by the administrator to recover the decedent’s pre-death damages based on the same injuries.
- Because the decedent’s death was alleged (and supported by affidavit) to have been the direct and proximate result of the injuries, the survival action was barred and properly dismissed.

## Legal Principles

- At common law, a personal-injury action abates upon the injured person’s death when the death results from the injury sued upon.
- Illinois’s wrongful-death statute creates a distinct statutory cause of action for the benefit of the widow and next of kin when death is caused by a wrongful act, neglect, or default.
- Where death results from the injuries and the wrongful-death statute applies, the wrongful-death action is treated as the sole remedy for the fatal injury; a separate action by the administrator for damages accruing before death based on the same injury is not permitted.
- The survival statute does not authorize a second, additional recovery for the same wrongful act that caused death when a wrongful-death action is available.
- A complaint seeking pre-death damages in a separate survival-type action may be dismissed when it is based on injuries that caused death and the administrator is already pursuing (or may pursue) the wrongful-death claim.

## Conclusion

The court affirmed dismissal of the administrator’s survival action because Illinois law treats the wrongful-death statute as the exclusive remedy when the decedent’s injuries cause death, preventing the administrator from maintaining a second suit for the decedent’s pre-death losses arising from the same occurrence.


Susemiehl v. Red River Lumber Co., 28 N.E.2d 743 (1940)