Prouty v. City of Chicago

• Decision Date: 07 June 1911
• Citation: 250 Ill. 222,95 N.E. 147
• Parties: PROUTY v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

250 Ill. 222

95 N.E. 147

PROUTY

v.CITY OF CHICAGO.

Supreme Court of Illinois.

April 19, 1911.

Rehearing Denied June 7, 1911.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; George A. Dupuy, Judge.

Action by James H. Prouty, administrator of Michael Doyle, deceased, against the City of Chicago. There was judgment of the Appellate Court affirming a judgment, overruling plaintiff's demurrer to the plea and dismissing the action, and plaintiff appealed the case to the Supreme Court on certificate of importance. Reversed and remanded, with directions.George E. Gorman, James A. Brady, and Brady, Barnum & Rutledge (A. S. Langille and Daniel Belasco, of counsel), for appellant.

Edward J. Brundage, Corp. Counsel, and Clyde L. Day, City Atty. (Edward C. Fitch, of counsel), for appellee.

CARTWRIGHT, J.

On November 14, 1906, appellant, James H. Prouty, administrator of the estate of Michael J. Doyle, deceased, brought this action on the case in the superior court of Cook county against the appellee, the city of Chicago, and on November 21, 1906, filed his declaration, alleging in seven counts wrongful acts of the defendant committed on October 27, 1906, causing the death of Doyle on the same day and depriving the widow and next of kin of their means of support. A plea of the general issue to the declaration was filed. There was no averment in any of the counts that notice had been given to the city in accordance with section 2 of the act entitled ‘An act concerning suits at law for personal injuries and against cities, villages and towns,’ in force July 1, 1905. Laws of 1905, p. 111. On April 17, 1908, by leave of court, plaintiff filed seven additional counts, which were identical with the original counts except that each contained an averment of service of such notice on November 13, 1906. To these additional counts the defendant filed pleas of the general issue and the statute of limitations. The plaintiff demurred to the plea of the statute of limitations, and the demurrer was overruled. The plaintiff elected to stand by his demurrer, and the suit was dismissed at his costs. He appealed from the judgment to the Appellate Court for the First District and the cause was heard in the branch of that court, which affirmed the judgment and granted a certificate of importance and an appeal to this court.

If this suit is for a personal injury, the giving of the notice specified in the second section of the act of 1905 was a fact which it was necessary for the plaintiff to prove in order to maintain the action, and therefore one of the facts which he was bound to aver in his declaration. Erford v. City of Peoria, 229 Ill. 546, 82 N. E. 374;Walters v. City of Ottawa, 240 Ill. 259, 88 N. E. 651.

[1] The averment was first made in the additional counts, more than one year after the date on which it was alleged that Doyle died, and, if the averment was a necessary one, the statute of limitations was a good plea, and the court was right in overruling the demurrer, but, if the suit is not for a personal injury, the court erred.

[2] One who suffers an injury to his person as a consequence of the wrongful or negligent act of another has a right of action for the damages resulting from such injury without the aid of any statute, but by a right which existed at common law. His action is for the personal injury, and he may recover for pain and suffering, physical and mental, for expenses of medical treatment and attendance, and permanent effects upon his person reasonably certain to result.

[3] If he dies from some other cause than the injury, the action for the injury to his person survives to his personal representative, who may recover damages for the personal injury. Savage v. Chicago & Joliet Electric Railway Co., 238 Ill. 392, 87 N. E. 377;Holton v. Daly, 106 Ill. 131.

[4] In the common understanding and legal meaning such a suit is for a personal injury. That is also true of any suit for injury to a living person brought by one sustaining such relations to the injured person that the plaintiff suffered damages as a consequence of the injury. If an injured person survives and brings a suit for the personal injury and afterward dies from its effects, the action does not survive but abates, and a different right of action is substituted based upon a statute. That is the right of personal representatives of a deceased person to bring a suit and recover the pecuniary injuries to the widow and next of kin occasioned by his death, and that right exists in this state by virtue of the act of 1853, entitled ‘An act requiring compensation for causing death from wrongful act, neglect or default.’ Laws of 1853, p. 97. That act does not, in its language or in substance, create a cause of action for a personal injury. It provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages resulting to the widow and next of kin from his death. We are asked to say that a suit of that kind is the same as a suit by a living person for damages sustained on account of an injury to his person, but it seems to us that it would require a perversion and change of language to reach such a conclusion.

By the general statute of limitations (Hurd's Rev. St. 1909, c. 83, § 14) actions for damages on account of an injury to a person must be commenced within two years next after the cause of action accrued, but the statutory action is barred at the expiration of one year from the death of the person for which it may be brought. The title of the act requiring notice has already been given, and it relates only to suits at law for personal injuries. The first section provides that no suit shall be brought by any person for an injury to his person unless such suit or action be commenced within one year from the time such injury...