Merrihew v. Chicago City Ry. Co. , 92 Ill. App. 346 ( 1900 )

Me. Presiding Justice Shepard

delivered the opinion of the court.

Edward Postens, now deceased, began a suit in his lifetime, against the defendant in error, to recover damages for an injury received by him on August 22, 1895, by reason of the alleged negligence of defendant in error. April 9, 1898, Postens died. On the date of his death the cause stood with a plea of the general issue to the declaration. Postens’ death was suggested, and the plaintiff in error, as executor of his last will and testament, was substituted in his -place as plaintiff in the case. Afterward the plaintiff in error filed an amended declaration, consisting of twelve counts, in which the negligence of the defendant was stated in various ways, but substantially as in the original declaration filed by Postens.

In eight of the counts, claim was made for damages on' account of the pain and suffering of Postens, his loss of time in his business, his expenses for medical attendance, etc., but there was no claim made in those counts for the loss to the next of kin of Postens resulting from his death, and to those eight counts the defendant pleaded the general issue.

In the four remaining counts, claim was made for damages to the next of kin of Postens resulting from his death, but nothing was claimed in those four counts on account of the loss, etc., claimed in the eight counts first spoken of, and to these four counts a demurrer was sustained.

The case thereupon went to trial on the said eight counts to which the defendant‘had pleaded the general issue. At the close of the plaintiff’s case the court, on motion of the defendant, directed a verdict for the defendant, on the ground that it appeared without any contradiction that the death was the result of the injuries complained of. On the other question, of the negligence of the defendant, a fair case may be said to have been made out for the jury to pass upon, but the evidence being plain, as said, that Postens’ death was the result of the injuries declared upon, the whole case was taken from the jury. The real question, therefore, before us for review, is, had the plaintiff the right, he having been substituted in the pending action, to continue the suit and recover therein the damages intermediate the injury and the death, for the benefit of Postens’ estate generally, and the damages resulting from his death, for the benefit of the next of kin.

If the injury had not been the proximate cause of Postens’ death there might have been a recovery by the plaintiff as his executor, notwithstanding Postens’ death pending the suit, for the same injuries that Postens might himself have recovered for had he lived. This was so, contrary to the common law rule, because of section 123, chapter 3, of the act of 1872, entitled “Administration of Estates,” whereby certain actions for personal injuries are made to survive. Chicago and Eastern Illinois Railroad Co. v. O’Connor, 119 Ill. 586.

But if the death of the injured party has resulted from the same injury that is declared upon, there can be no recovery by his personal representative on account of damages intermediate the injury and the death. Holton v. Dalv, 106 Ill. 131.

The right of action that survives under the act last referred to is for injuries that do not result in the death of the injured party, but his death ensues from some other cause. Ibid.

The act of February 12, 1853 (Secs. 1 and 2 , Oh. 70, entitled Injuries), giving an action to the personal representative of a deceased person whose death has been caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the injured party to maintain an action and recover damages in respect thereof,- is confined to cases where the death ensues from the wrongful act, etc., complained of, and does not extend to cases where the death ensues from other causes. It is a right of action that was not known to the common law, but was created by the statute for securing to the widow and next of kin “ compensation for causing death by wrongful act,” etc., as expressed in the title of the act; and the measure of damages that the wife and next of kin may recover is the pecuniary injuries resulting to them from the death, and not for the injuries personal to the injured party. The Supreme Court has, in its opinion in the last cited case, reviewed both acts referred to, and we regard the question as settled by that case, notwithstanding the argument of the plaintiff in error to the contrary.

Here, upon clear and uncontradicted evidence to the effect that Postens’ death resulted from the wrongful act complained of, the court directed a verdict for the defendant, and in our opinion acted rightly in that respect. This determined the question of whether Postens’ death was the result of the injuries he had sued for, and substantially ended the case. The ground for this is that when, in the action, that survived under the act of 1872, it is established that the death has resulted from the injuries declared upon in that suit, the entire right of recovery is included in the action for the death, given by the act of 1853 for the benefit of the family.

There could not be a union of the cause of action begun by Postens for injuries personal to himself, and which under the act of 1872 survived, with the cause of action given by the statute for the benefit of his family. As said in Holton v. Daly, supra, “It is not to be presumed it was intended (by the acts referred to) there should be two causes of action, in distinct and different rights, by the same party plaintiff for the same wrongful act, neglect or default.” If the rule announced in Holton v. Daly is to be modified in any respect it is for the Supreme Court, and not for us, to do. The judgment of the Circuit Court will be affirmed.