Bishop v. Chicago Rys. Co.

• Decision Date: 09 June 1922
• Docket Number: No. 14381.,14381.
• Citation: 303 Ill. 273,135 N.E. 439
• Parties: BISHOP v. CHICAGO RYS. CO.
• Court: Illinois Supreme Court

303 Ill. 273

135 N.E. 439

BISHOP

v.CHICAGO RYS. CO.

No. 14381.

Supreme Court of Illinois.

April 19, 1922.

Rehearing Denied June 9, 1922.

Action by James F. Bishop, administrator, against the Chicago Railways Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Thompson, J., dissenting.

Appeal from Superior Court, Cook County; Jacob H. Hopkins, judge.

James C. McShane, of Chicago, for appellant.

Charles Le Roy Brown, of Chicago (John R. Guilliams and John E. Kehoe, both of Chicago, of counsel), for appellee.

STONE, C. J.

Appellant, as administrator, brought suit against appellee to recover for the death of William E. Ford, who was killed November 12, 1913. The action in this case was brought July 23, 1920, under the provisions of section 2 of the act of 1873, entitled ‘An act to amend an act in regard to limitations.’ Hurd's Stat. 1921, p. 2014. Appellant had in December, 1913, begun an action against appellee for the death of Ford, and in his declaration made averments showing that the deceased and the appellee were working under and subject to the provisions of the Workmen's Compensation Act, making no allegation, however, that they had elected to operate under the act. In March, 1915, an amendment to this declaration was filed, setting out the election of appellee not to be bound by the Compensation Act. Appellee pleaded the statute of limitations, which plea was demurred to and the demurrer sustained. A trial was had and a verdict returned and judgment entered thereon. Upon review in this court the judgment of the Appellate Court, reversing the judgment of the superior court, was affirmed. Bishop v. Chicago Railways Co., 290 Ill. 194, 124 N. E. 837. The judgment of this court was entered on October 17, 1919, and within a year thereafter-that is, on July 23, 1920-the declaration was filed in this case.

Section 2 of the act amending the Limitations Act provides as follows:

‘In any of the actions specified in any of the sections of said act, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff * * * may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.’

One of the first questions raised is as to the constitutionality of section 2 of the Limitations Act (paragraph 25), it being contended by appellee that said section contravenes section 13 of article 4 of the Constitution, in that it amends certain sections of the Limitations Act and other acts without the amended sections or acts being inserted at Co., 223 App. Div. 809, 227 N. Y. S. laid down in the cases is that, where the old act must be read with the new in order to determine its provision concerning a liability, a duty, or a right, or in order to give any effect whatever to the new act, then such new act comes within the terms of the constitutional provision. Board of Education v. Haworth, 274 Ill. 538, 113 N. E. 939.Lyons v. Police Pension Board, 255 Ill. 139, 99 N. E. 337;Badenoch v. City of Chicago, 222 Ill. 71, 78 N. E. 31.

This provision is not construed to mean that when a new act is passed all prior acts in any way modified by it shall be published at length in the amendatory act. Hollingsworth v. Chicago & Carterville Coal Co., 243 Ill. 98, 90 N. E. 276;Timm v. Harrison, 109 Ill. 593;People v. Wright, 70 Ill. 388. The purpose of this provision of the Constitution is to avoid confusion arising from patchwork legislation, but it was not the purpose to require a practically endless reiteration of amended statutes. Section 2 of the amendatory act of 1873 does not amend theWILLIAM Act so that such sections read in any manner different. No period of limitation is changed by section 2 so far as the limitation appears in the Limitations Act. It fixes an additional period of limitation arising under certain conditions therein set out, and applies only when such conditions are met.

An act which adds another remedy to that already provided for is not an act amending any one section of the previous act. It must be held, therefore, to be an amendment of the entire act by adding sections thereto, so that what is included within the terms of the original act is included within the terms of the amendatory act. Gage v. City of Chicago, 203 Ill. 26, 67 N. E. 477;Morrison v. People, 196 Ill. 454, 63 N. E. 989. Whether or not an act amends another section or act is not to be determined, alone, by its title, but by the effect which it has upon existing laws. Lyons v. Police Pension Board, supra; People v. Crossley, 261 Ill. 78, 103 N. E. 537. It cannot, therefore, be said that the act contravenes the section of the Constitution referred to, and it is therefore not unconstitutional.

Appellee contends, also that section 2 of the amendatory act (called in the briefs section 25 of the Limitations Act) is not applicable to actions arising under sections 1 and 2 of the Injuries Act (Hurd's, Rev. St. 1921, c. 70), to which class the action in this case belongs. This question is not free from difficulty. No right existed at common law to recover for the wrongful death of a person. The Injuries Act passed by the Legislatureof this state in 1853 created such a cause of action for the first time in this state. This statute provides the parties in whose name the suit shall be brought and what shall be done with the proceeds of a judgment recovered thereunder. It fixes the time in which such action shall be brought. Originally the act provided that suit should be brought within two years after the death of the deceased. By amendment in 1903 this was reduced to one year. The limitation of the right to sue, fixing the exercise of such right within a year, is not a statute of limitations, but is a condition of the liability itself. Where action is brought under the Injuries Act in death cases the plaintiff must bring himself within the conditions of the act. Hartray v. Chicago Railways Co., 290 Ill. 85, 124 N. E. 849;Carlin v. Peerless Gaslight Co., 283 Ill. 142, 119 N. E. 66. It is seen, therefore, that the statute which creates the right-that is, the Injuries Act-places a limitation, not on defenses to the right of action, but upon the right of action itself. The statute of limitations may be styled a defense statute; the Injuries Act ispurely and simply a liability statute. The provision of the Injuries Act requiring that suit be brought within a year after the death not being a limitation statute, section 2 of the 1873 amendment to the Limitations Act cannot be said to be applicable to cases arising under the Injuries Act, unless the right of action in such cases can be seen to be included within the classes of cases embraced by the Limitations Act.

The act of 1873 referred to is, as designated in its title, ‘An act to amend an act in regard to limitations.’ Section 2 of the act expressed in plain language the intention of the Legislature that its provisions shall apply to ‘the actions specified in any of the sections of said act’-the Limitations Act. Sections 12, 13, 14, and 15 of the act relate to personal actions. Section 12 is to be read as a part of sections 13, 14, and 15. Handtoffski v. Chicago Traction Co., 274 Ill. 282, 113 N. E. 620. Section 13 refers to actions for slander and libel. Section 14 provides, in part, that--

‘Actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued.’

Section 15 provides that--

‘Actions * * * to recover damages for an injury done to property, real or personal, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.’

Appellant contends that actions under the Injuries Act in death cases are actions to recover damages for injuries to the person, or, if not, they are actions to recover damages for injuries to property. It is argued that, since it has been held that an action under the Injuries Act in death cases survives against the representatives of the tortfeasor, within the meaning of the act relating to the survival of causes of action, it must be held to be an action for injury to the person within the meaning of the Limitations Act, and counsel cite Devine v. Healy, 241 Ill. 34, 89 N. E. 251. In that case the question was whether or not an action might be brought by the administrator of a deceased person against the executor of one who was alleged to have caused the death, but who since had died. It was there held that, if the injured person dies from some other cause than the injury received, his cause of action against the tort-feasor survives to his personal representative, but if he dies from the injury itself the only action that can be maintained is the action for the benefit of the widow and next of kin given under the Injuries Act of 1853. It was there also held that under the Administration Act, relating to the survival of actions, an administrator of a person whose death was caused by the wrongful act of another may maintain an action against the tort-feasor's executor under section 2 of the Injuries Act. It will be seen that this decision cannot be taken as authority for the contention that a death case is an injury to the person within the meaning of the Limitations Act.

Crane v. Chicago & Western Indiana Railroad Co., 233 Ill. 259, 84 N. E. 222, and Mooney v. City of Chicago, 239 Ill. 414, 88 N. E. 194, do not decide the point in issue here. The right to recover for personal injuries existed at common law, and was a right existing in the person injured to recover for those elements of damage generally recognized in personal injury cases, and if...