Metro. Trust Co. v. Bowman Dairy Co.

• Decision Date: 20 June 1938
• Docket Number: No. 24605.,24605.
• Citation: 15 N.E.2d 838,369 Ill. 222
• Parties: METROPOLITAN TRUST CO. et al. v. BOWMAN DAIRY CO.
• Court: Illinois Supreme Court

369 Ill. 222

15 N.E.2d 838

METROPOLITAN TRUST CO. et al.

v.BOWMAN DAIRY CO.

No. 24605.

Supreme Court of Illinois.

June 20, 1938.

Death action by the Metropolitan Trust Company, administrator, against the Bowman Dairy Company and another. Judgment for plaintiff against the named defendant was affirmed by the Appellate Court for the First District, 292 Ill.App. 492, 11 N.E.2d 847, and the named defendant appeals.

Affirmed.Appeal from Appellate Court, First District, on Appeal from the Superior Court, Cook County; Joseph Sabath, Judge.

Montgomery, Hart, Pritchard & Herriott, of Chicago (Louis E. Hart and L. Edward Hart, Jr., both of Chicago, of counsel), for appellant.

Ryan, Sinnott & Miller and Kelner & Kelner, all of Chicago, for appellees.

JONES, Justice.

Plaintiff's intestate was injured in an accident at Forty-seventh street and Albany avenue in the city of Chicago on October 20, 1934, and subsequently died. She was proceeding east on the sidewalk along the north side of Forty-seventh street near the west side of Albany avenue. The Bowman Dairy Company's horse-drawn milk wagon, coming from the west, was at or near the intersection, en route to some point on Albany avenue. A truck driven by Fred G. Kunz, coming from the east, in avoiding a collision with the milk wagon, skidded onto the sidewalk and struck decedent, inflicting the fatal injuries.

On December 19, 1934, plaintiff, as administrator of decedent's estate, filed a complaint in the superior court of Cook county against the Bowman Dairy Company and Kunz to recover under the Injuries Act, Ill.Rev.Stat.1937, c. 70, § 1 et seq., for the death of decedent. The original complaint averred ‘that defendants and each of them carelessly and negligently operated their vehicles in such a manner as to strike the decedent, inflicting severe personal injuries, which proximately resulted in the death of the decedent.’ On the trial, plaintiff's evidence disclosed that the milk wagon did not strike decedent. A variance was claimed, and, on December 2, 1936, plaintiff was permitted to amend the complaint by charging the negligence of both defendants caused the truck of the defendant Fred G. Kunz to strike decedent. Thereupon, the Bowman Dairy Company amended its answer and charged that a new cause of action was stated and that it was barred because not filed within one year after the death of plaintiff's intestate. A motion to strike the amendment to the answer was overruled. The trial resulted in a $5,000-verdict and judgment for appellee against the Bowman Dairy Company. The jury found Kunz not guilty. The Appellate Court affirmed the judgment, and the cause is here on a certificate of importance.

The question presented arises under the provisions of section 46 of the Civil Practice Act of 1933. (Ill.Rev.Stat.1937, chap. 110, § 170.) That section replaces section 39 of the Practice Act of 1907, Smith-Hurd Stats. c. 110, Appendix, § 39. It originally consisted of one paragraph and was identical with section 23 of the Practice Act of 1872, Laws 1871-72, p. 342. It provided that, at any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing necessary parties, discontinuing as to any joint party, changing the form of action, and in any matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense, and that the adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action.

In 1929, a second paragraph was added to section 39. It provided that any amendment to any pleading shall be held to relate back to the date of Filing the original pleading, and the cause of action or defense set up in the amended pleading shall not be barred under any statute limiting the time within which an action may be brought if the time limited had not expired when the original pleading was filed, and if it shall appear, from the original and amended pleading, that the cause of action or defense asserted in the amended pleading grew out of the same transaction or occurrence and is substantially the same as set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact, or some other matter or matters which are necessary conditions precedent to the right of recovery, when such conditions precedent have been, in fact, performed.

The Injuries Act first became a law in this State in 1853. The provision in section 2 of the original act, Smith-Hurd Stats. c. 70, § 2, limiting the time for commencing suit to two years after the death, was changed to one year by an amendment in 1903, Ill.Rev.Stat.1937, c. 70, § 2, and, as amended, still remains in force. Under that act we have uniformly held that the time fixed by it for commencing an action for wrongful death is not a statute of limitations, but is a condition of the liability itself. It is a condition precedent attached to the right to sue at all, and being so, the plaintiff must bring himself within the prescribed requirements necessary to confer the right of action. Bishop v. Chicago Railways Co., 303 Ill. 273, 135 N.E. 439;Hartray v. Chicago Railways Co., 290 Ill. 85, 124 N.E. 849. That doctrine was applied in the Hartray Case where the declaration did not state a cause of action through a failure to state that the action was commenced within one year after the death. In Day v. Talcott, 361 Ill. 437, 198 N.E. 339, we applied it to an amendment filed more than one year after the time limited for commencing the action, where the original complaint did not state a cause of action. Under those holdings, it is claimed that section 46 of the Civil Practice Act has no application to suits under the Injuries Act.

The holdings of this court, prior to the 1929 amendment of section 39 of the 1907 Practice Act, are concisely summarized in Carlin v. City of Chicago, 262 Ill. 564, 104 N.E. 905, Ann.Cas.1915B, 213, where the action was to recover damages for the wrongful death of plaintiff's intestate. Citing numerous earlier decisions, we said (page 909): ‘If the original declaration fails to state any cause of action whatever, and an amended declaration is filed, after the statute of limitations has run which does state a cause of action, the filing of such an amended declaration will be regarded as the beginning of the suit for that cause of action and the statute will constitute a good defense. * * * If an amendment introduces a new cause of action not stated in the original declaration, the running of the statute of limitations is not arrested as to such new cause by the filing of the original declaration, and the statute may be pleaded to the cause of action stated in the amended declaration. * * * If the amended declaration restates the original cause of action in a different form, the filing of such an amendment relates back to the commencement of the suit, and the statute of limitations is not a defense.’ In that case we cited Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 803,Swift & Co. v. Foster, 163 Ill. 50, 44 N.E. 837, and Mackey v. Northern Milling Co., 210 Ill. 115, 71 N.E. 448, cases in which the cause of action was for damages on account of wrongful death.

The addition of the second paragraph to section 39 in 1929 manifested a ligislative intent to liberalize the practice so as to preserve rights of action which might theretofore have been lost by omissions or errors in pleading. The amendment was effective to some extent, but it was still required that the cause of action stated in the amended pleading must be substantially the same as set out in the original. If the original pleading did not state a cause of action, it is obvious that an amendment which did so could not be substantially the same as the original, and so it was still necessary that the declaration should state a cause of action in order for an amendment to relate back to the filing of the original pleading. Day v. Talcott, supra, was decided while section 39, as amended, was in force. In that case we held that an amendment, filed after the limitation period prescribed by the Injuries Act, did not relate back to the filing of a declaration which, by distinct averments, admitted contributory negligence and want of due care by a decedent on account of whose death the action was instituted. In that case we pointed out that the declaration failed to state a cause of action, not only by an omission of any averment of due care, but contained affirmative allegations showing no liability. In the course of the opinion we said (198 N.E. page 340): ‘This court has uniformly held that if a plaintiff desires to avail himself of the provisions of the Injuries Act * * * he must bring himself within its terms and provisions,’ and held that section 39 had no application to a declaration which states no cause of action at all.

Under the claim that section 46 of the Civil Practice Act has no application to suits under the Injuries Act appellant cites the Bishop Case, supra. In that case, after reversal of a judgment of the trial court, a new action was begun under a provision of an amendment to the Limitations Act, Ill.Rev.Stat.1937, c. 83, § 25. We held that the Statute of Limitations has no application to suits under the Injuries Act. Some former decisions of this court have inadvertently used the words, ‘Statute of Limitations' in applying the one-year limitation for commencing suit under the Injuries Act, but the holding, in each case, was an application of the latter statute, and it was not meant to designate it as a statute of limitations. We adhere to the pronouncement in the Bishop Case, but our holding there does not in any way indicate that the former Practice Act did not apply to suits under...