Hartray v. Chicago Rys. Co.

• Decision Date: 03 December 1919
• Docket Number: No. 12312.,12312.
• Citation: 124 N.E. 849,290 Ill. 85
• Parties: HARTRAY v. CHICAGO RYS. CO.
• Court: Illinois Supreme Court

290 Ill. 85

124 N.E. 849

HARTRAY

v.CHICAGO RYS. CO.

No. 12312.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 3, 1919.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Theodore Brentano, Judge.

Action by William C. Hartray, administrator of the estate of Frank Jagielski, deceased, against the Chicago Railways Company. On certiorari to the Appellate Court for the First District to review a judgment (210 Ill. App. 382) reversing a judgment of the superior court in favor of plaintiff. Affirmed.

Carter, J., dissenting.

C. Helmer Johnson, of Chicago (James D. Power, of Chicago, of counsel), for plaintiff in error.

Charles LeRoy Brown, of Chicago (John R. Guilliams and Weymouth Kirkland, both of Chicago, of counsel), for defendant in error.

THOMPSON, J.

This cause comes to this court by writ of certiorari to the Appellate Court for the First District to review a judgment of that court reversing a judgment of the superior court in an action on the case instituted by William C. Hartray, as administrator of the estate of Frank Jagielski, deceased, against the Chicago Railways Company to recover damages for the death of said Jagielski.

This suit was brought November 28, 1910, and the declaration alleged that the injury resulting in death occurred June 27, 1909. The declaration contains no allegation that the action was commenced within one year after the death of Jagielski, nor was the date of his death averred. To this declaration defendant in error filed a plea of general issue. After verdict for plaintiff in error, the defendant in error interposed a motion in arrest of judgment, which was overruled. It is contended by defendant in error that the declaration must show on its face that the action was brought within one year after the death, and that, as this is an essential averment, the declaration states no cause of action.

A declaration which fails to allege a fact the existence of which is necessary to entitle the plaintiff to recover does not state a cause of action. Beveridge v. Illinois Fuel Co., 283 Ill. 31, 119 N. E. 46;Walters v. City of Ottawa, 240 Ill. 259, 88 N. E. 651. This suit was brought under the Injuries Act (Hurd's Rev. St. 1917, c. 70), and the time fixed for commencing an action arising under that act is a condition of the liability, and operates as a limitation of the liability itself, and not of the remedy alone. Carlin v. Peerless Gas Light Co., 283 Ill. 142, 119 N. E. 66;Goldstein v. Chicago City Railway Co., 286 Ill. 297, 121 N. E. 726. Since the right of action for death by wrongful act is wholly statutory, and must be taken with all the conditions imposed upon it, the burden being upon plaintiff to bring himself within the requirements of the statute, it is almost universally held that a provision in the statute creating the right, requiring an action thereon to be brought within a specified time, is more that an ordinary statute of limitations and goes to the existence of the right itself. It is a condition attached to the right to sue at all. The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358;Bretthauer v. Jacobson, 79 N. J. Law, 223, 75 Atl. 560;McRae v. New York, New Haven & Hartford Railroad Co., 199 Mass. 418, 85 N. E. 425,15 Ann. Cas. 489;Harwood v. Chicago, Rock Island & Pacific Railway Co., 101 Kan. 215, 171 Pac. 354; 17 Corpus Juris, 1235; De Martino v. Siemon, 90 Conn. 527, 97 Atl. 765. It is a condition precedent to the right of recovery granted by this act that the action be brought within one year after the cause of action accrues. Gengo v. Mardis (Neb.) 170 N. W. 841. In a statutory action like this, where the right is conditional, the plaintiff must bring himself clearly within the prescribed requirements necessary to confer the right of action. Sharp v. Sharp, 213 Ill. 332, 72 N. E. 1058;Hamilton v. Hannibal & St. Joseph Railroad Co., 39 Kan. 56, 18 Pac. 57. Inasmuch, therefore, as the limitation of the time in which to sue is considered not merely of the remedy, but of the right of action itself, and the cause of action exists subject to the limitation, a declaration must allege...