Chiagouris v. Jovan

• Decision Date: 02 October 1963
• Docket Number: Gen. No. 48969
• Citation: 43 Ill.App.2d 220,193 N.E.2d 205
• Parties: George P. CHIAGOURIS, Appellant, v. Constantine J. JOVAN and William J. Jovan, Administrators of the Estate of James N. Jovan, Deceased, Appellee.
• Court: United States Appellate Court of Illinois

Page 205

193 N.E.2d 205

43 Ill.App.2d 220

George P. CHIAGOURIS, Appellant, v. Constantine J. JOVAN and William J. Jovan, Administrators of the Estate of James N. Jovan, Deceased, Appellee.

Gen. No. 48969.

Appellate Court of Illinois, First District, Third Division.

Oct. 2, 1963.

Echt & Getzoff, Chicago, J. Edward Clair, Chicago, of counsel, for appellant.

Seymour F. Simon, Joseph D. Teitelbaum, Nathan Wolfberg, Chicago, for appellees.

McCORMICK, Justice.

This appeal is taken from an order of the Superior Court of Cook County dismissing a complaint for libel in a suit brought by the plaintiff, George P. Chiagouris, against Constantine J. Jovan and William J. Jovan, administrators of the estate of James N. Jovan, deceased, which dismissal was based on the ground that the death of James N. Jovan, the alleged libelant, abated the plaintiff's cause of action. The order dismissed the plaintiff's complaint with prejudice and without day, and stated that the order should be considered as a final order from which an appeal may be taken.

The statute under the provisions of which the court dismissed the plaintiff's suit is chapter 3, paragraph 339, of the Illinois Revised Statutes, which provides:

'In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of 'An Act relating to alcoholic liquors' * * *.'

At common law all actions founded on tort abated at the death of either party. 1 I.L.P. Abatement § 103; Olson v. Scully, 296 Ill. 418, 421, 129 N.E. 841, 842; 1 C.J.S. Abatement and Revival § 132; 1 Am.Jur.2d Abatement, Survival, and Revival, sec. 51. The common law maxim actio personalis moritur cum persona was held to apply. This rule has been in many jurisdictions, including Illinois, changed by statute. However, the statute from which we have just quoted provides that the actions of slander and libel are excepted therefrom, and under that statute an action for slander abates with defendant's death. 1 I.L.P. Abatement § 109; 1 Am.Jur.2d Abatement, Survival, and Revival, sec. 96. In considering such a statute the same rules apply as in the construction of any other statute. The statute should be given the meaning and effect which the legislature intended it to have, and should be construed with reference to the principles of the common law in force at the time of its passage. 1 C.J.S. Abatement and Revival § 133. The survival of an action is purely a creature of statute. In Jones v. Barmm, 217 Ill. 381, 75 N.E. 505, after the plaintiff had brought his action the defendant died. His administratrix was substituted as a party defendant. She filed a plea in abatement alleging the death of the defendant and that the cause of action as set forth in the declaration did not survive. The court in its opinion found that the suit was brought to recover for an alleged tort in interfering with plaintiff's business, and it held that at common law actions of tort did not survive the death of the sole plaintiff or defendant and that if the action survived it must be by virtue of the statute. There the plaintiff insisted that the action survived by virtue of section 122 of chapter 3, Hurd's Statutes of 1903, the provisions of which the court quoted in its opinion. The court said: 'We cannot agree with this contention. In the section above quoted, actions of slander and libel are expressly excepted. The cause of action alleged in this declaration is to a certain extent in the nature of an alleged slander uttered by Barmm...