Denton v. Midwest Dairy Prods. Corp.

• Decision Date: 06 March 1936
• Docket Number: Ag. No. 1.
• Citation: 1 N.E.2d 807,284 Ill.App. 279
• Parties: DENTON v. MIDWEST DAIRY PRODUCTS CORPORATION.
• Court: United States Appellate Court of Illinois

284 Ill.App. 279

1 N.E.2d 807

DENTON

v.MIDWEST DAIRY PRODUCTS CORPORATION.

Ag. No. 1.

Appellate Court of Illinois, Fourth District.

March 6, 1936.

Appeal from Circuit Court, Fayette County; Wm. B. Wright, Judge.

Suit by Josephine M. Denton, administratrix of the estate of David U. Denton, deceased, against the Midwest Dairy Products Corporation. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded. Carl H. Preihs, of Pana, M. C. Cook, of DuQuoin, and W. P. Welker, of Vandalia, for appellant.

J. G. Burnside, of Vandalia, for appellee.

EDWARDS, Presiding Justice.

Appellee, as administratrix of the estate of David U. Denton, deceased, brought suit in behalf of herself as widow, and her infant son as next of kin, of the deceased, against appellant to recover damages for the death of decedent caused by the willful and wanton misconduct of the driver of a truck belonging to appellant and in which her intestate was riding as a guest passenger. A jury awarded appellee $4,000 damages. At appropriate times appellant moved for directed verdicts, judgment non obstante veredicto, and for a new trial, all of which motions were overruled by the court and judgment entered upon the verdict. Appellant insists that the court erred in each of such rulings.

The trial court appears to have treated the suit as having been brought under Smith-Hurd Ann.St. c. 95 1/2, § 58a, Ill.Rev.Stat.1935, c. 95a, par. 47(5) providing: “No person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”

In Reed v. Zellers, 273 Ill.App. 18, the court, in construing this section, held that it did not create a cause of action, but, on the contrary, was a limitation of the common-law right of the guest to recover for damages. This being true the action could not be predicated upon such section, but must be based upon sections 1 and 2 of the Injuries Act, Smith-Hurd Ann.St. c. 70, §§ 1, 2, Ill.Rev.Stat.1935, c. 70, pars. 1, 2, which, in effect, provide that, when the death of a person is caused by the wrongful act of another, and the act is such as would, if death had not resulted, entitle the party injured to maintain an action for the damages thereby sustained, the personal representatives of such deceased person may maintain the action for his next of kin.

In Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, 102 N.E. 819, the rule was declared to be that, where a death results from injuries occasioned by the misconduct of another, the only action which lies is the one granted by the Injuries Act to the personal representatives for the benefit of the next of kin of the deceased, and likewise held in Young v. Ostrander, 270 Ill.App. 368. It is obvious that appellee was obliged to institute her action under sections 1 and 2 of the Injuries Act, and that such sections, as restricted by said section 58a, control the bringing of the suit and the right and extent of the recovery.

Appellant contends that the law, applicable to the cause, required appellee to aver and prove that her intestate's decease was proximately caused by the misconduct of appellant's employee, and that it was not sufficient that she allege and show merely that such misconduct contributed to his death.

That the law so requires, unless it be that the rule has been changed by said section 58a, is not open to dispute. It has for many years been the settled law not only in this state, but in most other jurisdictions, that, to sustain an action for death, the wrongful act complained of must have been its proximate cause. Chicago & A. R. Co. v. Becker, 76 Ill. 25;Schmalfeld v. Peoria & E. Ry. Co., 156 Ill.App. 1;Temple v. Alton, Granite & St. L. Traction Co., 197 Ill.App. 227;Ramberg v. Morgan (Iowa) 218 N.W. 492;Elliott v. Kraus, 92 Ind.App. 494, 172 N.E. 783;Frye v. City of Detroit, 256 Mich. 466, 239 N.W. 886;Breed v. Philgas Co., 118 Conn. 128, 171 A. 14;Beach v. Patton, 208 N.C. 134, 179 S.E. 446. Moreover, it has been held by our courts that in such case the plaintiff must aver, and the proof must establish, that the wrongful act of the defendant caused the death complained of, Holton v. Daly, 106 Ill. 131; Quincy Coal Co. v. Hood, 77 Ill. 68; Schmalfeld v. Peoria & E. Ry. Co., supra, and not merely that it contributed thereto.

[4] “In order to arrive at the proper construction to be placed upon a statute, it is proper to look at the law as it previously stood, the matter sought to be remedied, and the nature and spirit of the statute.” Bookhart v. Greenlease-Lied Motor Co., 215 Iowa, 8, 244 N.W. 721, 722, 82 A.L.R. 1359.

Applying the test thus laid down, we notice that the law in force previous to the enactment of said section 58a permitted a guest passenger to recover for injuries sustained through the wrongful act of another, whether such was mere negligence, or willful and wanton misconduct; that the object to be attained was the elimination of such actions, when based solely upon ordinary negligence, and the limitation of the right of recovery to instances where the injury was resultant from wanton and willful misconduct. With such a background of purpose, it is difficult to believe that the Legislature could have intended to limit the bringing of such actions to instances of misconduct which in their nature border on crime, and at the same time permit a recovery upon proof that the willful and wanton misconduct merely contributed to the death, without regard to the degree of contribution, no matter how slight or remote it might be.

We do not think that such was their purpose or intent, or that they designed to alter the long-established and thoroughly understood rule, based upon logic and common sense, in the light of human understanding and experience, that, before a recovery is warranted, it is incumbent upon the plaintiff to aver and prove that the wrongful act of the defendant was the proximate cause of the death.

Appellant claims that the complaint in each count fails to make such averment. In the first count it is charged, “that said injury to plaintiff's intestate, from which injuries on the date he received the same he died, was then and there caused by the willful and wanton misconduct of the driverof such motor vehicle”; in count No. 2 the allegation is, “which said wanton and willful conduct on the part of the defendant, by and through its agent and employee, contributed to and caused the injury to plaintiff's intestate, from which injury he died on the day and date aforesaid”; while in the third count the charge is, “that said injury to plaintiff's intestate, from which injuries on the date he received the same he died, was then and there...