McDaniel v. Bullard

• Decision Date: 24 March 1966
• Docket Number: No. 39566,39566
• Citation: 216 N.E.2d 140,34 Ill.2d 487
• Parties: John O. McDANIEL, Sr., Admr., et al. Appellants, v. Charles N. BULLARD et al., Appellees.
• Court: Illinois Supreme Court

Page 140

216 N.E.2d 140

34 Ill.2d 487

John O. McDANIEL, Sr., Admr., et al. Appellants, v. Charles N. BULLARD et al., Appellees.

No. 39566.

Supreme Court of Illinois.

March 24, 1966.

Rehearing Denied May 18, 1966.

Lilienstein, Knuppel & Grosboll, Petersburg, and Kenneth R. Boyle, Carlinville, for appellants.

Herbert L. Cantrill, Ben K. Miller, Struart Dobbs and Walter J. Simhauser, Springfield (Olson, Cantrill & Miller and Gillespie, Burke & Gillespie, Springfield, of counsel), for appellees.

KLINGBIEL, Chief Justice.

On this appeal we are asked to decide whether a pending action under the Wrongful Death Act abates upon the beneficiary's death from other causes, and if so, whether the abatement works a denial of the constitutional guaranty of a certain remedy for all injuries and wrongs.

The action was begun on behalf of Yvonne Ann McDaniel, the infant next of kin of her parents and her sister, who were all killed in an automobile collision. After the complaint was filed, and some nine and one-half months after the accident, Yvonne died from causes unrelated thereto. The defendants thereupon moved to dismiss, on the ground that death of the sole surviving next of kin left the decedents without next of kin and that the action therefore abated. The circuit court granted the motion, dismissing not only the counts alleging a cause of action under the Wrongful Death Act but also counts alleging a common-law action for injuries which would be preserved by the Survival Act but for the bar created by the Wrongful Death Act. The administrators appeal directly to this court, arguing, Inter alia, that if the applicable statutes are so construed the result is a denial of remedy for a wrong, contrary to section 19 of article II of the constitution, S.H.A., as well as a denial of equal protection of the laws.

The Wrongful Death Act provides for recovery of damages whenever the act or negligence is such as would have entitled the injured party to recover damages if death had not ensued. (Ill.Rev.Stat.1963, chap. 70, par. 1.) Section 339 of the Probate Act, (herein called the Survival Act) provides that in addition to actions which survive by the common law, actions for personal injuries and actions for injuries to real or personal property also survive. (Ill.Rev.Stat.1963, chap. 3, par. 339.) Defendants point out the Survival Act makes no provision for the survival of an action for wrongful death, and they argue that any action there might have been for personal injuries was merged into the wrongful death action and cannot be revived by abatement of the latter. Relied upon is Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170, wherein death of the sole surviving next of kin within 30 minutes after the decedent's death was held to have extinguished or abated the right of action on her behalf under the Wrongful Death Act.

It is necessary at the outset to consider defendants' contention that no consitutional question is involved so as to warrant a direct appeal to this court. They say that the dismissal worked no denial of a remedy because Yvonne, at all times during her lifetime, had an adequate remedy for her loss, and the abatement simply prevents enrichment of her estate. The plaintiffs insist, on the other hand, that the ruling leaves them with no remedy for the pecuniary loss of support sustained by Yvonne during the nine and one-half months she survived.

The question persented here is whether Yvonne's fortuitous death prior to judgment is adequate justification for denying recovery for the injury already sustained to her means of support. We are asked to decide whether complete justice is denied when damages already suffered become unrecoverable upon death--in other words whether the Wrongful Death Act as so construed fails to afford a complete and adequate remedy within the meaning of the constitutional provision. While the jurisdictional question is not entirely free from doubt we think that plaintiff's contention raises a question under the constitution which warrants direct review. Cf. Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352; Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153; Siegall v. Solomon, 19 Ill.2d 145, 166 N.E.2d 5; Heckendorn v. First Nat. Bank, 19 Ill.2d 190, 166 N.E.2d 571.

On the merits defendants insist the case is controlled by Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170. In that case the infant next of kin died within 30 minutes of her father's death, from injuries received in the same accident. The cause of action was held to have abated, on the ground that at common law actions founded on tort did not survive and that the Survival Act did not help because it applies only where the property damaged is tangible--'chattel property or property that can be seen and handled'--and does not apply where, as here, the property rights are intangible ones. Relied upon was the holding in Jones v. Barmm, 217 Ill. 381, 75 N.E. 505, that a tort action for interfering with the plaintiff's business did not survive his death, since the damage occasioned was not to any particular piece of personal property visible to the naked eye, and the act, in the opinion of the court, was intended to apply only where the damage was to tangible articles and things movable. The basis of this holding, apparently, was that the words in a statute are to be given their popular meaning and that when this statute was passed 'personal property' was held in the popular meaning to include only articles or things movable. Shedd v. Patterson, 312 Ill. 317, 144 N.E. 5.

So far as it is material the language of the Survival Act is that 'In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, * * *.' (Ill.Rev.Stat.1963, chap. 3, par. 339.) In holding that a wrongful death action abates on death of the next of kin this court in the Wilcox case concluded 'It is not a suit to recover damages to presonal property or to real estate within the meaning of the Survival Act, but is a suit to recover for a loss of the increase in money value to the estate of the deceased, which the deceased would in all probability have made had he lived, for the benefit and use of his widow and next of kin. It may be said to be a suit for recovery of damage or loss to a property right in its most general sense, but it is not a suit to recover loss to personal or real property and is not assignable under the previous holdings of this court.'

We think the statute ought no longer be given such a narrow, technical construction. Whatever may be the distinction between a property right in its most general sense and 'real or personal property,' we cannot consider property tangible merely because people usually thought of it that way in the 19th century. Such a rule of statutory construction would lead to absurd consequences and would largely defeat the object of the Survival Act in modern society. Broad terms like 'personal property' must be construed with reference to the conditions of present-day life. The fact that particular forms of it were not in existence at the time of enactment, or were not specifically contemplated by the lawmakers, does not limit the application of the statute. Legislative enactments which are prospective in operation, and phrased in terms comprehensive enough to include things of the same class subsequently coming into existence, should be held applicable where such is consistent with the general legislative purpose. The act involved here does not say 'goods and...