Pease v. Rockford City Traction Co.

• Decision Date: 05 October 1917
• Docket Number: No. 11391.,11391.
• Citation: 117 N.E. 83,279 Ill. 513
• Parties: PEASE v. ROCKFORD CITY TRACTION CO. et al.
• Court: Illinois Supreme Court

279 Ill. 513

117 N.E. 83

PEASE

v.ROCKFORD CITY TRACTION CO. et al.

No. 11391.

Supreme Court of Illinois.

June 21, 1917.

Rehearing Denied Oct. 5, 1917.

Appeal from Appellate Court, Second District, on Error to Circuit Court, Winnebago County; Arthur H. Frost, Judge.

Action by Warren W. Pease against the Rockford City Traction Company and others, and, plaintiff dying, his administrator, Charles W. Pease, was substituted as plaintiff. Judgment for defendants was affirmed by the Appellate Court, and plaintiff appeals. Reversed and remanded, with directions.

Roy F. Hall, of Rockford, for appellant.

R. K. Welsh, of Rockford, for appellees.

DUNN, J.

On December 31, 1914, Warren W. Pease began an action on the case against the appellees for personal injuries received while in the employ of the defendants, through their negligence, on July 21, 1914. On February 11, 1915, he died, and, his death having been suggested to the court, his administrator was substituted as plaintiff, and, on leave given, the praecipe and summons were amended so as to show Charles W. Pease, administrator of the estate of Warren W. Pease, deceased, as plaintiff. An amended declaration of four counts was filed on May 10, 1915, each count alleging the same negligence as was charged in the original declaration. The first and third counts charged that the deceased died from causes unknown to the plaintiff; the second and fourth that his death was the result of the injuries received. The second count, however, contained no allegation that the deceased left a widow or next of kin surviving him, while the fourth count did contain such an allegation. A plea of the general issue was filed to the declaration on June 1, 1915, and the cause stood thus at issue until February 23, 1916, 12 days after the lapse of one year from the death of Warren W. Pease. On that day the defendants asked leave to withdraw their plea to the fourth count, which was granted, and thereupon the defendants moved to strike the fourth count from the files, and this motion was allowed. This count stated a good cause of action, and if the facts were as stated in it there could be no recovery on either of the other counts. Later in the term the plaintiff made a motion to vacate the order striking the fourth count, to permit him to elect and to dismiss the other three counts and permit the fourth count to stand as the declaration, but the motion to reinstate the fourth count was denied, the other counts were dismissed and judgment was rendered against the plaintiff for costs. The Appellate Court affirmed the judgment and granted a certificate of importance and appeal.

If the plaintiff in an action for personal injuries dies before judgment from some cause other than his injuries the cause of action survives to his administrator, but if his death results from the injuries sued for, the suit abates, and cannot be further prosecuted. Holton v. Daly, 106 Ill. 131; Prouty v. City of Chicago, 250 Ill. 222, 95 N. E. 147;Chicago and Eastern Illinois Railroad Co. v. O'Connor, 119 Ill. 586, 9 N. E. 263;Ohnesorge v. Chicago City Railway Co., 259 Ill. 424, 102 N. E. 819;Wilcox v....