McDavid v. Fiscar

• Decision Date: 07 March 1951
• Docket Number: No. 9741,9741
• Citation: 97 N.E.2d 587,342 Ill.App. 673
• Parties: McDAVID v. FISCAR et al.
• Court: United States Appellate Court of Illinois

Page 587

97 N.E.2d 587

342 Ill.App. 673

McDAVID v. FISCAR et al.

No. 9741.

Appellate Court of Illinois, Third District.

March 7, 1951.

Jones, Ottesen & Fleming, Belleville, Frank E. Morris, St. Louis, Mo., for appellant.

Omer Poos, and Vandever & Bullington, all of Hillsboro, for appellees.

DADY, Justice.

This suit was brought under the Wrongful Death Act (Ch. 70 R.S.) by plaintiff, Frank L. McDavid, as Administrator with the will annexed of the Estate of Catherine Hall, deceased, against defendants, Stephen Fiscar, Harry Satterlee and Jack Bray. The trial court, on the motion hereinafter referred to, dismissed the suit. Plaintiff appeals from such order of dismissal.

The amended complaint in certain counts alleged that decedent, while in the exercise of due care, was injured and came to her death in Montgomery County, Illinois, on July 15, 1949, because of the negligence of certain defendants, and, in certain counts, because of wilful and wanton misconduct of one defendant.

Paragraph 8 of each count alleged that Catherine Hall, the decedent, left Kenneth Edward Hall, as her only heir at law and next of kin, that he was legally adopted by her and her husband, William Hall, by a decree entered in the Circuit Court of St. Louis, Missouri, on June 12, 1925, that William Hall predeceased Catherine Hall, and that Kenneth Edward Hall sustained pecuniary loss and damage as a result of the death of Catherine Hall. This was the only allegation as to next of kin.

Attached to and by reference made a part of the complaint as 'Exhibit A' was an exemplified copy of an order entered in such Missouri court on June 12, 1925, which reads: 'Now * * * come the petitioners Wm. Hall and Cathern Hall, his wife, * * * comes also Jesse P. Smith, the duly appointed guardian ad litem to represent Kenneth Edward Kietemann in this proceeding; thereupon * * * the Court * * * doth find that the petitioners * * * are desirous of adopting one Kenneth Edward Dietmann. * * * that Gesine and George Phillip Dietmann, the parents of said child, are dead; that * * * Louis J. Hartke, guardian of said child * * * has given his consent, in writing to the adoption of said child by petitioners. * * * that * * * it is fit and proper that such adoption should be made. Wherefore, it is ordered, adjudged and decreed * * * that from the date hereof, * * * said child shall hereafter be deemed * * * to be for every purpose the child of petitioners, as fully as though born to them in lawful wedlock; and that the name of said child be and is hereby changed to Kenneth Edward Hall.'

On motion of defendants, paragraph 8 and Exhibit A were stricken on April 1, 1950.

On May 23, 1950, the circuit court entered an order which, so far as is material, reads: 'That the plaintiff * * * has elected to abide by his amended complaint and does not desire to waive any of his rights under his amended complaint in the above entitled cause, and further that said plaintiff has moved this Court for the entry of a final order and judgment of dismissal * * * so that an appeal may be taken by said plaintiff to the Appellate Court of the Third District of the State of Illinois. It is hereby ordered that the above entitled cause and each and every count thereof is dismissed and judgment is hereby entered in favor of the defendants and against the plaintiff.'

Defendants contend that plaintiff, having requested that such final order be entered, is not entitled to have the same reversed on appeal. They say that striking only paragraph 8 and Exhibit 'A' did not 'make it impossible for plaintiff to obtain a judgment.' We do not agree with this contention. In an action under the Wrongful Death Act neither the administrator nor the estate has any interest in or right to the benefit of any judgment that may be recovered, but the real party in interest is the next of kin as beneficiary. Voorhees v. Chicago & Alton R. Co., 208 Ill.App. 86; Van Meter v. Goldfarb, 317 Ill. 620, 148 N.E. 391, 41 A.L.R. 343. The motion to strike admitted that the deceased left no husband. If she left no next of kin then there could be no recovery for the benefit of any one. Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170. Therefore, to maintain the action plaintiff had to allege that decedent left some particular person or persons as her next of kin. The plaintiff, and Kenneth Edward Hall, in our opinion, had the right to have it alleged and proven that the latter was the only next of kin.

Defendants call attention to the familiar rule that a consent decree or judgment cannot be reversed on appeal or writ of error. After the motion to strike was allowed defendants made no further motion. When plaintiff elected to abide by his said complaint, although defendants made no motion for judgment, the trial court, on its own motion could have entered final judgment. This not having been done plaintiff, to protect his rights, had to take some action, and in our opinion properly asked the court to enter judgment so that an appeal could be taken by him. It is our opinion that the judgment order clearly shows that it was not a consent judgment but only entered so that plaintiff could have the rights of plaintiff and Keneth Edward Hall passed on by a court of review. To hold otherwise would, on our opinion, be too narrow and technical a construction of the rules of law and procedure applicable to the due administration of justice.

The only ground stated in the motion to strike paragraph 8 was, 'There is no right of recovery in the State of Illinois for wrongful death for the benefit of a child by adoption.' No Illinois case has been called to our attention in which this question has been passed on.

Plaintiff's right to maintain this action for the benefit of Kenneth Edward Hall, if he was legally adopted, is dependent on and controlled by the laws of Illinois. See Keegan v. Geraghty, 101 Ill. 26.

Section 2 of our Wrongful Death Act, enacted in 1853, states: 'Every such action shall be brought by and in the names of the personal representatives of such deceased person, and * * * the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate * * *.'

On June 12, 1925, the date when it is alleged the adoption was made, and at all times since, our adoption statutes have stated that a decree of adoption shall order 'that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner * * *.'

On June 12, 1925, and at all times thereafter until our present Probate Act was approved on July 24, 1939, our Adoption Act has provided that 'A child so adopted shall be deemed, for the purpose of inheritance by such child, * * * and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock * * *.' Ill.Rev.Stat.1937, c. 4, § 5.

Section 14 of our Probate Act at all times since July 24, 1939 has provided that 'A child lawfully adopted is deemed a descendant of the adopting parent for purposes of inheritance * * *.' Ill.Rev.Stat.1949, c. 3, § 165.

It is our opinion that the words 'next of kin' as used in our Wrongful Death Act have been enlarged upon by the subsequent passage of the above quoted provisions of the adoption statutes and of the Probate Act of this State.

The construction of adoption statutes should not be so narrow or technical as to defeat the intention of the acts or the beneficial results, where all material provisions of the statute have been complied with. Hopkins v. Gifford, 309 Ill. 363, 141 N.E. 178. We believe that this rule of law also applies to the Injuries Act in the instant case.

In Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170, 175, the court said, 'The term 'next of kin,' in its technical, legal meaning, means persons nearest in degree of blood surviving. * * * The next of kin of any deceased person are definite blood relatives or a definite class of blood relatives or kinsmen in existence at the time of the death of the deceased who would take his personal property in case he died intestate.' In that case no question as to the rights of an adopted child was involved.

Security Title & Trust Co. v. West Chicago St. R. R. Co., 91 Ill.App. 322, was an action under the Wrongful Death Act brought by the mother of a deceased illegitimate child. The court said: 'The common law regarded an illegitimate child as nullis filius for the purpose...