Hall v. Gillins

• Decision Date: 24 January 1958
• Docket Number: No. 34392,34392
• Parties: James Leon HALL et al., Appellants, v. Carl E. GILLINS, Appellee.
• Court: Illinois Supreme Court

Page 352

147 N.E.2d 352

13 Ill.2d 26

James Leon HALL et al., Appellants, v. Carl E. GILLINS, Appellee.

No. 34392.

Supreme Court of Illinois.

Jan. 24, 1958.

John Alan Appleman, Urbana, and John A. Rutledge, Arthur, for appellants.

Ray F. Dobbins, Champaign, and Clausen, Hirsh & Miller, Chicago (John C. Hayes, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

Owen Hall was fatally injured in an automobile collision. Grace Hall, his widow, and James Hall, his surviving nine-year-old son, by his mother as next friend, filed the complaint in this case. They alleged that the collision was due to the negligence of the defendant, and that as a direct result of that negligence each plaintiff was deprived of the support, companionship, guidance, advice and affection of the husband and father. The widow requested damages of $142,450; the son $47,500. The trial court dismissed the complaint on defendant's motion.

On this direct appeal the plaintiffs argue that they possess 'hitherto unrecognized common law rights of action for the destruction of the family unit' which are distinct and wholly different from the wrongful death action provided by statute. (Ill.Rev.Stat.1957, chap. 70, pars. 1, 2.) They contend that their rights of action cannot be barred by the Wrongful Death Act because section 19 of article II of our constitution, S.H.A., provides that 'Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; * * *.' That provision, they say, means a complete and adequate remedy, which the Wrongful Death Act does not provide.

The defendant's position is that the plaintiffs can not maintain their action because the statute requires that wrongful death actions shall be brought by the personal representative of the deceased, and the plaintiffs' action does not differ in essence from the statutory action. They argue also that no common-law action exists because death abated any possible action at common law, and that the constitution guarantees to the plaintiffs no more than the remedy allowed by statute.

The common-law rule that no cause of action exists for a wrongful death dates back to Huggins v. Butcher, decided in 1607. (1 Brownl. & Golds. 205, Yelv. 89, 80 Eng. Rep. 61.) It was crystallized in Lord Ellenborough's instruction to the jury in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033, (1808). The plaintiffs point out that no satisfactory reasons for the rule have ever been advanced, and that it has been universally criticized. See Holdsworth, Origin of the Rule in Baker v. Bolton, 1916, 32 L.Q.Rev. 431, and authorities collected in Prosser on Torts, 2d ed., sec. 105. They direct attention to the fact that other injuries to the family relationship have been held to be actionable (Johnson v. Luhman, 330 Ill.App. 598, 71 N.E.2d 810; Daily v. Parker, 7 Cir., 152 F.2d 174, 162 A.L.R. 819; cf. Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464, 167 A.L.R. 232,) and they emphasize the anomaly that stems from the statutory limitation upon the amount recoverable in a wrongful death action-'the injustice of giving $200,000 for a lost arm and limiting recovery for death to $25,000 * * *.'

The argument against the common-law rule that refused to allow an action for wrongful death is an appealing one. The reasons for the rule, principally grounded as they are in the old notion that the civil action for the death merged in the criminal action, have no significancen today. If no more was involved than departure from an outworn precedent, plaintiffs' argument would be persuasive. But the common-law rule has everywhere been changed by legislation, and since 1853 recovery has been permitted in Illinois under a statute that follows the outlines of Lord Campbell's Act which was originally enacted in England in 1846. (Laws of Illinois, 1853, p. 97; 9 & 10 Vict. c. 93; Prosser on Torts, 2d Ed., Sec. 105.) We are asked to hold that the remedy that the legislature has provided is invalid because it is inadequate, or alternatively to overturn the old common-law rule and establish a new common-law remedy.

In our opinion the constitutional question is not formidable when it is considered in the context of the situation that existed when the statute was originally enacted. At that time no action whatsoever was permitted for a wrongful death. The legislature took away no right when it enacted the statute. It created both the right and the remedy, and we think that its power to limit the maximum recovery in the action that it created can not be questioned. The fact that most States place no limit upon the amount recoverable, or that the legislative limit may seem unduly low when contrasted with recoveries in other actions, does not affect the power of the legislature, or the validity of its action.

The adequacy of the remedy that the legislature has provided, however, does have a bearing when we are asked, as a common-law court, to review the remedies available and to determine whether or not a new one should be recognized. The Wrongful Death Act provides that an action may be brought against the tortfeasor whenever the death of a person is caused by the wrongful act, neglect or default of another under circumstances that would have permitted the injured person to recover if death had not ensued. The action is to be brought by the personal representative of the deceased, for the benefit of the widow and next-of-kin. The statute limits the amount recoverable. The limit applicable to this case is $25,000. Ill.Rev.Stat.1957, chap. 70, pars. 1 and 2. The differences between...