Susemiehl v. Red River Lumber Co.

• Decision Date: 15 May 1940
• Docket Number: Gen. No. 9506.
• Citation: 27 N.E.2d 285,305 Ill.App. 473
• Parties: SUSEMIEHL v. RED RIVER LUMBER CO. ET AL.
• Court: United States Appellate Court of Illinois

305 Ill.App. 473

27 N.E.2d 285

SUSEMIEHL

v.RED RIVER LUMBER CO. ET AL.

Gen. No. 9506.

Appellate Court of Illinois, Second District.

May 15, 1940.

Appeal from Circuit Court, Kane County; Wm. J. Fulton, Judge.

Action by Henry H. Susemiehl, as administrator of the estate of Walter Susemiehl, deceased, against the Red River Lumber Company and another, to recover medical and hospital expenses incurred by deceased between date of accident and date of death, and for pain and suffering endured and wages lost during such time, and for funeral expenses. From a judgment for the defendants, the plaintiff appeals.

Affirmed. Sears, O'Brien & Streit, of Aurora, for appellant.

Cassels, Potter & Bentley, of Chicago, for appellees.

DOVE, Justice.

Walter Susemiehl was injured on September 7, 1938, in an automobile collision and as a direct and proximate result of those injuries died October 31, 1938. Two suits were thereafter commenced in the Circuit Court of Kane County by his administrator against appellees, one of which was to recover under the wrongful death statute for the pecuniary loss resulting to decedent's next of kin and the instant proceeding brought under the survival statute to recover medical and hospital expenses incurred by the deceased and for which his estate would be liable between the death of the accident and the date of his death, also for the pain and suffering he endured during that time, the wages he was deprived of earning and his funeral expenses. To this complaint the defendants filed their separate motions to dismiss, supported by affidavits setting forth that plaintiff's intestate died as a direct and proximate result of the injuries he sustained in the automobile collision, that there is another action pending for his wrongful death under the injuries act, which act gives to the plaintiff his sole and exclusive right of action. The trial court sustained these motions and the plaintiff, electing to abide his complaint, judgment was rendered in favor of the defendants and against the plaintiff in bar of the action and for costs and plaintiff appeals.

The instant complaint is predicated upon Ill.Rev.Stat.1939, Chap. 3, Par. 125, which provides: “In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit”. The statute providing compensation for causing death by wrongful act, neglect or default provides: “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, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” Ill.Rev.Stat.1939, Chap. 70, Sec. 1. Sec. 2 of the same act provides that every such action shall be brought by and in the name of the personal representative of the deceased person and the amount recovered 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, limits the amount of recovery to a sum not to exceed $10,000 and provides that such action shall be commenced within one year after the death of such person.

The only question presented on this appeal is whether or not an administrator of a person injured by the alleged negligence of another and dying as a direct and proximate result of such injury can maintain two suits as administrator, one on behalf of the next of kin to recover damages occasioned by the wrongful death and another for damages alleged to have been sustained before his death.

Appellees contend that if death results from the injuries sued for, the suit of the injured person or a suit by his personal representative abates and can not be further prosecuted citing Holton v. Daly, 106 Ill. 131 and many later Illinois decisions, viz.: Chicago & E. I. R. R. Co. v. O'Connor, 119 Ill. 586, 9 N.E. 263;Crane v. Chicago & W. Ind. R. R. Co., 233 Ill. 259, 84 N.E. 222;Mooney v. City of Chicago, 239 Ill. 414, 88 N.E. 194;Devine v. Healy, 241 Ill. 34, 89 N.E. 251;Prouty v. City of Chicago, 250 Ill. 222, 95 N.E. 147;Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, 102 N.E. 819;Wilcox v. International Harvester Co., 278 Ill. 465, 116 N.E. 151;Pease v. Rockford City Traction Co., 279 Ill. 513, 117 N.E. 83;Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170 and Little v. Blue Goose Motor Coach Co., 346 Ill. 266, 178 N.E. 496.

Counsel for appellant concede that the holding in Holton v. Daly, supra, has been accepted generally by the bench and bar of this state as sustaining the ruling of the trial court but counsel argue that all the court held in the Daly case was that it was erroneous to give in that case an instruction which advised the jury that if they found the defendant guilty that then in estimating the damages the jury might consider the effect of the injury upon the health of the deceased, his ability after the accident to attend to his affairs, his bodily pain and suffering, necessary medical and nursing expenses and loss of time; that they could not consider the death of plaintiff's intestate as an element of damage but only all damage sustained by him up to the time of his death. The facts in that case were that Michael Daly brought a suit against Charles C. Holton to recover for injuries received by him as the result of the bursting of an emery wheel while he was in the employ of the defendant. He recovered a judgment in the trial court which was reversed by the appellate court and the cause remanded. Thereafter Daly died and his administratrix was substituted as party plaintiff. Upon the second trial the plaintiff recovered a judgment which was affirmed by the appellate court. In reversing those judgments the Supreme Court in the course of its opinion said that the evidence showed that Daly's death resulted subsequent to the bringing of this suit in consequence of the injury which formed the basis of his suit. “If”, continued the court, “the evidence had shown that the death was the result of causes other than the bursting of the emery wheel, or, rather, that the injuries occasioned by the bursting of the emery wheel, to recover for which alone the suit was originally brought, did not cause the death, it is quite apparent this instruction would be free of objection; but in view of the fact that the evidence showed that the death resulted from the injuries occasioned by the bursting of the emery wheel, a very different question is presented”. The court then said that at common law, personal actions arising ex delicto, died with the person and did not survive to the representatives, that the wrongful death statute of February 12, 1853, changed this and that waiving all question as to the sufficiency of the pleadings, the instruction was erroneous if the object of the plaintiff was to recover under the statute, inasmuch as the only damage for which there may be a recovery under that statute is solely the pecuniary loss which the next of kin have sustained. The court then said that the right of action which, at common law, would have terminated at the death of a party injured is continued for the benefit of the wife and next of kin and its scope enlarged to embrace the injury resulting from the death. The court then took up the question whether under the Act of 1872, Ill.Rev.Stat.1929, Chap. 3, Sec. 125, supra, the giving of this instruction could be sustained and said:

“If a party receiving injuries died from other causes, no action could be maintained under the act of February 12, 1853; but now, under the statute of 1872, the cause of action survives to his personal representatives. It is not to be presumed it was intended there should be two causes of action, in distinct and different rights, by the same party plaintiff, for the same wrongful act, neglect or default. It would, obviously, be impossible to draw a line severing with accuracy the damages resulting from the permanent character of the injury, and its effect upon the capacity of the plaintiff for future usefulness in acquiringproperty, etc., from the actual loss to the wife, parent or child, in consequence of being deprived of this same capacity, by reason of the same injury resulting in death. Yet if the administrator is entitled to recover for the benefit of the estate, generally, just what the plaintiff could have recovered if he had not died before judgment, it is settled he can recover for permanent injuries impairing future usefulness, and consequent pecuniary loss. ( Peoria Bridge Association v. Loomis, 20 Ill. 235 .) Nevertheless, as we have seen, it is for precisely this loss, when death results, that the widow, parent or child, or next of kin, is entitled to recover.

“The recognition of the right in the deceased to have controlled this action in his lifetime, leads, logically, to the conclusion that a recovery by him would have been a bar to a recovery by his representative, and this because the cause of action would have been merged in the judgment. (Freeman on Judgments, sec. 241.) But if the action by the administrator, under the act of February 12, 1853, is for something other and different than that for which the deceased could have recovered had he obtained judgment in his lifetime, it is manifest no such merger...