Pratt v. Hayes, Gen. No. 11188

• Decision Date: 18 February 1959
• Docket Number: Gen. No. 11188
• Citation: 156 N.E.2d 290,20 Ill.App.2d 457,79 A.L.R.2d 1071
• Parties: , 79 A.L.R.2d 1071 Doris L. PRATT, as Administrator of the Estate of Edwin Emory Pratt, deceased, Plaintiff-Appellant, v. James F. HAYES, as Administrator of the Estate of William Ray Hayes, Deceased, Defendant-Appellee. . Second District, Second Division
• Court: United States Appellate Court of Illinois

Page 290

156 N.E.2d 290

20 Ill.App.2d 457, 79 A.L.R.2d 1071

Doris L. PRATT, as Administrator of the Estate of Edwin Emory Pratt, deceased, Plaintiff-Appellant, v. James F. HAYES, as Administrator of the Estate of William Ray Hayes, Deceased, Defendant-Appellee.

Gen. No. 11188.

Appellate Court of Illinois.

Second District, Second Division.

Feb. 18, 1959.

Granger, Beckers, Snow & Brandenburg, Kankakee, for appellant.

Butz, Blanke & Stith, Kankakee, for appellee.

CROW, Justice.

In this case the complaint was filed on February 6, 1957 to recover for the alleged wrongful death of the plaintiff's intestate on February 14, 1955. The trial court on the motion of the defendant entered a final judgment dismissing the suit upon the grounds that the action was not brought within one year of the death of the plaintiff's intestate, as provided by Section 2 of the Injuries Act prior to the amendment made thereto approved July 14, 1955, House Bill 777: Laws 1955, p. 2006. The plaintiff appeals.

The statute at the time the alleged cause of action arose, February 14, 1955, provided, in part,--" * * * every such action shall be commenced within one year after the death of such person. * * * ": Ch. 70, Ill.Rev.Stats.1953, par. 2. The General Assembly, on June 2, 1955, passed House Bill 565, and the same was approved June 9, 1955, amending Section 2 of the Injuries Act: Laws 1955, p. 293. This amendment to the Injuries Act set out Section 2 substantially as it existed on the date of the death of the plaintiff's intestate, including the provision as to the time limitation for commencing suit that--" * * * every such action shall be commenced within one year after the death of such person. * * * ",-- and also added a new last paragraph which in effect, barred any of the next of kin who were contributorily negligent from receiving any portion of the damages allowed. Thereafter, on June 29, 1955, the Legislature passed House Bill 777, again amending Section 2 of the Act, and the same was approved on July 14, 1955: Laws 1955, p. 2006. By this last amendment the maximum amount of any recovery for wrongful death was increased from $20,000 to $25,000 where the death occurred on or after the effective date of that amendatory act. It further provided that any recovery should be apportioned among the next of kin in proportion to the percentage of their dependency upon the deceased rather than in accordance with the law of descent, and this last 1955 amendment further read, as to the time limitation for commencing suit: " * * * every such action shall be commenced within two years after the death of such person. * * * " Both of the 1955 amendments are set out in Ch. 70, Ill.Rev.Stats.1955, par. 2. In the 1957 Revised Statutes only the section as amended by the last 1955 amendment and as further amended in 1957 is set out: Ch. 70, Ill.Rev.Stats.1957, par. 2.

The sole issue in this case is whether the two year time limitation amendment to the Injuries Act, House Bill 777, approved July 14, 1955, Laws 1955, p. 2006, applies to causes of action arising prior to the enactment of the amendment, thus permitting this suit filed February 6, 1957, after that last 1955 amendment, and being within two years, but not within one year, of the alleged wrongful death.

The defendant states that an examination of authorities in this State fails to disclose any previous decisions on this precise question by our Supreme Court or the Appellate Courts, but argues that there is ample authority based on reason and the application of rules of statutory construction to support the decision of the trial court for the defendant.

It is the theory of the defendant that only a prospective application of House Bill 777 was intended by the Legislature; and that no retroactive application of the two year suit limitation as to a cause of action arising prior thereto was expressed or is to be implied.

The title of this last 1955 amendment, House Bill 777, was "An Act to amend Section 2 of 'An Act requiring compensation for causing death by wrongful act, neglect, or default', approved February 12, 1853, as amended." It consists of but one section, Section 1. The initial language thereof is: "Section 2 of 'An Act requiring compensation for causing death by wrongful act, neglect or default', approved February 12, 1853, as amended, is amended to read as follows: * * * ". It then sets forth Section 2 of the 1853 act as it is to read in its so amended form. That consists of some five paragraphs. It is complete within itself. It would appear to purport to be an overall inclusive provision, or set of provisions, as to the subject it deals with. It is not just a change of a word, or few words, or a sentence, or few sentences, or a paragraph, or few paragraphs of the prior Section 2. It is a complete statement, or setting forth, or provision of a Section 2.

The first 1955 amendment, House Bill 565, had the same title, also consisted of but one section, its initial language was the same, and its general format was the same, although, of course, its provisions as to the time limitation for suit, here involved, and as to some other matters were different.

The first paragraph of the new section 2 of the 1853 act as amended by the last 1955 amendment recites as follows: "Every such action shall be brought by and in the names of the personal representatives of such deceased person, * * * " and, as to the limitation of damages it provides: " * * * not exceeding $20,000 where such death occurred prior to the effective date of this amendatory act of 1955, and not exceeding $25,000 where such death occurred on or after the effective date of this amendatory act of 1955."

The second paragraph begins: "The amount recovered in any such action shall be distributed by the court * * *."

The third paragraph begins: "Where the wrongful act, neglect or default causing the death occurred on or after July 25, 1949, * * *."

Then the fourth paragraph begins: "Provided, that every such action shall be commenced within two years after the death of such person. * * * "

And the fifth paragraph begins: "In any such action to recover damages where the wrongful act, neglect or default causing the death occurred on or after the effective date of this amendatory act of 1955, it shall not be a defense * * *."

Considering the title of the last 1955 amendment, and its initial language, and the previous adoption and approval of the first 1955 amendment, together with the possible or probable existence on June 29, 1955 of many alleged causes of action for wrongful death which had arisen before that time, the above underscored inclusive language in those paragraphs would appear rather clearly to indicate the legislature had in mind preexisting possible alleged causes of action as well as causes of action to occur in futuro and that it was the legislature's intention that the new Section 2 of the 1853 act as amended by the last 1955 amendment, House Bill 777, was to apply to every such action, or any such action, for alleged wrongful death, whether the alleged cause of action giving rise thereto arose before or after the effective date of that last 1955 amendment. When the first, second, third, and fifth paragraphs contemplate preexisting alleged causes of action as well as causes of action thereafter to arise, and are applicable to both situations, so far as material, it is difficult to believe the fourth paragraph containing the two year time limitation for suit was intended to mean something else and to apply only to alleged causes of action thereafter accruing. The legislature could easily have provided a different time limitation for suits on causes of action arising before as distinguished from causes of action arising after the effective date of the last 1955 amendment. But it did not do so.

It would not seem reasonable to believe that the legislature intended there should be, after July 1, 1955, two separate, distinct, co-existing sections 2 of the Injuries Act of 1853, as amended, one being that provided by the first 1955 amendment, House Bill 565, and the other that provided by the last 1955 amendment, House Bill 777. The last must have been intended to supersede and be substituted for the first. The first must have been intended to drop out and no longer to exist after the last had become effective.

If the last 1955 amendment were construed to apply, as to the two year time limitation on suits, only to causes of action arising after it became effective, as the defendant urges, then since the first 1955 amendment and its one year time limitation had apparently necessarily been superseded by the last 1955 amendment, there would evidently be, under that view, no time limitation in the act as to suits on alleged causes of action arising prior to the effective date of the last 1955 amendment, and that would not aid the defendant. We cannot attribute to the legislature an intention to leave such an anomalous hiatus in the law as to time limitations on such suits.

Where two separately adopted amendments to a statute or section relating to the same subject matter are adopted at the same session and are so inconsistent and repugnant that they both cannot contemporaneously operate and be given effect, the later amendment in point of time necessarily controls: People ex rel. Schlaeger v. Mattes, 1947, 396 Ill. 348, 71 N.E.2d 690; Turley v. Arnold, 1943, 384 Ill. 158, 51 N.E.2d 176; People ex rel. Heaton v. Illinois Cent. R. Co., 1920, 295 Ill. 408, 129 N.E. 66. The provision "every such action shall be commenced within one year after the death of such person" is certainly inconsistent with and repugnant to the provision "every such action shall be commenced within two years after the death of such person."

In Carlin v. Peerless Gas Light Co., 1918, 283 Ill. 142, 119 N.E. 66, the alleged wrongful death occurred April 9, 1903. The suit was begun May 4, 1904. At the time of the alleged wrongful...