Ferak v. Elgin, J. & E. Ry. Co.

• Decision Date: 30 November 1973
• Docket Number: No. 45641,45641
• Citation: 304 N.E.2d 619,55 Ill.2d 596
• Parties: Bernard FERAK, Special Admr., Appellee, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 619

304 N.E.2d 619

55 Ill.2d 596

Bernard FERAK, Special Admr., Appellee, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, Appellant.

No. 45641.

Supreme Court of Illinois.

Nov. 30, 1973.

Harlan L. Hackbert, Chicago (Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, of counsel), for appellant.

Philip E. Howard and Jerome H. Torshen, Ltd., Chicago (Jerome H. Torshen and Robert F. Berrey, Chicago, of counsel), for appellee.

UNDERWOOD, Chief Justice:

Michael Ferak suffered injuries while employed by defendant railroad as a yard worker and brought this suit under the Federal Employers' Liability Act (45 U.S.C. sec. 51 Et seq.). He died on May 6, 1965, and on October 27, 1969, his death was suggested of record in the trial court and his son, Bernard Ferak, as special administrator, was substituted as plaintiff. Judgment for $75,000 was entered upon a jury verdict for plaintiff. The Appellate Court for the First District affirmed (9 Ill.App.3d 199, 292 N.E.2d 131), and we granted leave to appeal.

Defendant's arguments here are twofold: (1) that the action commenced by the decedent did not survive for the benefit of his adult, nondependent son, and (2) that the survival action was barred by failure to substitute the special administrator as party plaintiff within three years after decedent's death. Defendant concedes that its first contention would necessitate our overruling Jensen v. Elgin, Joliet and Eastern Ry. Co. (1962), 24 Ill.2d 383, 182 N.E.2d 211, and vigorously urges us to do so.

Section 1 of the Act (section 51 of Title 45) creates two causes of action, one by the employee for negligent injury to him, and, in the event of his death from such injury, an additional cause of action 'to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee * * *.' Section 9 of the Act (section 59 of Title 45) provides for the survival of the employee's right of action in the following terms:

'Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.'

In Jensen we pointed out the distinction between these actions, insofar as the right of an adult, nondependent child to maintain them is concerned. Quoting Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417: "This (action for wrongful death) cause of action is independent of any action which the decedent had, and includes no damages which he might have recovered for his injury if he had survived (* * *) it is a liability for the loss and damage sustained by relatives dependent upon the decedent. It is therefore a liability for the pecuniary damage resulting to them, and for that only", and citing St. Louis, Iron Mountain & Southern Ry. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160, and Gulf, Colorado & Santa Fe Ry. Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785, we noted that the basis of liability under the wrongful death action is the direct wrong to the beneficiaries in causing their pecuniary loss, and that, if a child had suffered no pecuniary loss, then he had not been damaged and no basis of liability existed. We then stated: The basis of liability for an action which survives under section 9 is, on the other hand, the wrong to the injured employee and the measure of damages is his personal loss and suffering before he died. (Citation.) Thus, the basis of liability and measure of damages that may operate to prevent some children from...