Holton v. Daly

• Citation: 106 Ill. 131,1882 WL 3483
• Parties: CHARLES C. HOLTONv.MARY DALY, Admx.
• Decision Date: 20 November 1882
• Court: Supreme Court of Illinois

106 Ill. 131

1882 WL 3483 (Ill.)

CHARLES C. HOLTON

v.MARY DALY, Admx.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding.

On the eighth day of August, 1877, Michael Daly brought an action on the case, in the circuit court of Cook county, against Charles C. Holton, to recover for injuries caused by the bursting of an emery wheel, through negligence, etc. The general issue was pleaded. The cause was tried at the October term, 1878, of the court, resulting in a verdict for the plaintiff, assessing his damages at $5000. At the December term of the court next following, a motion for a new trial, etc., was overruled, and judgment was rendered upon the verdict. An appeal was prosecuted from that judgment to the Appellate Court for the First District, and that court, on inspecting the assignment of errors, and after argument, etc., reversed the judgment of the circuit court, and remanded the cause for another trial. Subsequent to this, Michael Daly died, intestate, and Mary Daly was appointed administratrix of his estate, and afterwards, and after the cause had been redocketed in the circuit court pursuant to the mandate of the Appellate Court, the death of Michael Daly, the plaintiff, was suggested upon the record, and Mary Daly, administratrix of his estate, was substituted as the party plaintiff in the cause, and thereupon the defendant, by his attorney, moved the court to dismiss the cause, as one not surviving to the administratrix; but the court overruled the motion, and the defendant excepted. The cause was again tried at the May term, 1881, of the Cook county circuit court, and resulted in a judgment for the plaintiff for $4000. An appeal was prosecuted from this judgment to the Appellate Court for the First District, and that court, at its October term, 1881, affirmed the judgment of the circuit court. The present appeal is from the last named judgment.

Messrs. HOLMES, RICH & NOBLE, for the appellant:

The court had no jurisdiction to try this action, or any action commenced by Daly, for the reason that the statute specially providing for injuries resulting in death, requires that every such action shall be brought by the personal representative, for the exclusive benefit of the widow and next of kin.

Section 124 of the chapter of the Revised Statutes relating to the administration of estates, which provides, that “in addition to the actions which survive by the common law, the following shall also survive: * * * actions to recover damages for an injury to the person, except slander and libel,” has no application to personal injuries causing the death of the person. It applies to personal injuries not producing the death of the party injured.

The court erred in refusing to charge the jury that if the plaintiff could recover at all, she could recover for only the pecuniary loss sustained by Daly, the intestate, as requested in our first proposed instruction, and in charging that if she had a case she could recover for Daly's bodily pain and suffering.

Messrs. HYNES, ENGLISH & DUNNE, for the appellee:

This action was brought by the intestate himself, in his lifetime. He died after one trial, and judgment in his favor for $5000, which was reversed on error. His administratrix was substituted as plaintiff, the statute declaring that the cause of action shall survive.

No damages were claimed in the declaration for the death of the intestate, and none sought to be recovered on the trial for that cause. The plaintiff in this action could recover only for what the intestate himself could, had he lived. His rights, whatever they were, passed to his personal representative, and nothing more or less.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Counsel for appellant sought to raise the question whether the present cause of action survives to the personal representative, by a motion to dismiss the suit after the administratrix had been substituted in the place of the deceased plaintiff. But this was manifestly not practicable. Possibly it might have been raised by a plea in abatement, pleading the death of the plaintiff in consequence of the same injuries to recover damages for which suit was brought; but it is unnecessary to express any opinion upon this point, since no such plea was filed. The motion, even if it could be allowed to take the place of a demurrer, which we do not concede, could only reach defects apparent upon the face of the record, and there was nothing on the face of this record showing of what deceased died.

We are, however, of opinion that substantially the same question arises upon instructions, when considered in connection with the evidence to which they are applicable. The evidence shows the deceased was injured by the bursting of an emery wheel belonging to appellant, whilst he was in the employ of the appellant, and engaged in using such wheel. Suit was brought by deceased for this injury, alleging that it was caused by the negligence of appellant. The evidence shows that death resulted subsequent to the bringing of this suit, in consequence of the same injury. There was no attempt to prove it was the result of any other cause, but on the contrary, the evidence affirmatively and clearly showed it was from that cause. It is, therefore, with reference to this state of the evidence that we are to determine whether the jury were properly instructed.

The seventh instruction, given at the instance of appellee, is as follows:

“The jury are instructed that if, under the evidence and instructions of the court, the jury find the defendant guilty, then, in estimating the plaintiff's damages, it will be proper for the jury to consider the effect of the injury upon the health of the deceased, (if they believe, from the evidence, that his health was affected by the injury in question,) and also his ability after said accident to attend to his affairs generally in pursuing his ordinary trade or calling, (if the evidence shows that the same was affected by said accident,) and also the bodily pain and suffering he underwent, the necessary expenses of nursing, and medical care and attendance, and loss of time, (so far as these are shown by the evidence,) and all the damage which, from the evidence, can be treated as the necessary result of the injury complained of. The jury can not consider the death of plaintiff's decedent as an element of damage, but only all damage sustained by him up to the time of his death.”

If the evidence had shown that the death was the result of causes other than the bursting of the emery wheel, or, rather, that the injuries occasioned by the bursting of the emery wheel, to recover for which alone the suit was originally brought, did not cause the death, it is quite apparent this instruction would be free of objection; but in view of the fact that the evidence showed that the death resulted from the injuries occasioned by the bursting of the emery wheel, a very different question is presented. The common law rule was, that actions merely personal, arising ex delicto, died with the person, and did not survive to the representatives. Thus, Blackstone says: “And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as, trespass, battery and slander, the rule is, that actio personalis moritur cum personâ; and it never shall be revived, either by or against the executors or other representatives,--for neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong and injury.” (See, also, 1 Chitty's Pleading, 7th Am. ed. 78.) But our General Assembly, by an act approved February 12, 1853, changed this rule, enacting as follows:

“Sec. 1. Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.” The cause of action is plainly the wrongful act, neglect or default causing death, and not merely the death itself. Damages are recoverable, not for the killing, but, as was observed by COMSTOCK, J., in Dibble v. New York and Erie R. R. Co. as quoted by him in his dissent in Whitford v. Panama R. R. Co. 23 N. Y. 486, “notwithstanding or in spite of the death which ensues. The statute...