Torts II, Pages 608–611

Murphy v. Martin Oil Co.

Supreme Court of Illinois, 1974


Plaintiff's husband was suffered severe burns at defendant's gas station, was hospitalized for nine days, and then died from his wounds. Plaintiff sued for wrongful death and for pain and suffering and lost wages from the nine days he was hospitalized and lost clothing from the fire.

Procedural History:

Trial court dismissed the second count. The intermediate appellate court allowed the claim in part. Both appealed.


Can plaintiff recover for her husband's harms before he died?

(Old) Rule:

An action for personal injury does not survive death if the death resulted from same tortious conduct as the injury did.


Most jurisdictions and the allow action for personal injuries in addition to wrongful death, including pain and suffering. Likewise the Federal Employers' Liability Act allows recovery for pain and suffering in addition to a wrongful death suit. This is the ongoing trend.

The old rule was not required by the statutes. They are conceptually separable and different.

This new rule is preferable because it avoids the injustice caused by ignoring the real loss and pain suffered in such cases while shielding the wrongdoer from the full consequences of his damage.


Pain from between the time of injury to the time of death is recoverable.


Affirmed in part; reversed in part.