The Quincy Coal Co. v. Hood

• Citation: 1875 WL 8265,77 Ill. 68
• Parties: THE QUINCY COAL COMPANYv.JAMES HOOD, Admr.
• Decision Date: 31 January 1875
• Court: Illinois Supreme Court

77 Ill. 68

1875 WL 8265 (Ill.)

THE QUINCY COAL COMPANY

v.JAMES HOOD, Admr.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McDonough county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.

Mr. C. F. WHEAT, and Mr. D. G. TUNNICLIFF, for the appellant.

Mr. WM. H. NEECE, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

John Allen Hood, being a minor, of the age of fourteen years, was killed by the falling of a rock from the roof of a common gang-way at the foot of the shaft of appellant's coal mine, and while in the employment of the latter in shoving cars in the mine. Appellee, his father, taking out letters of administration, brought this action under the act of 1853, to recover damages, upon the ground of negligence in the employer in not supplying a safe support for the roof of said gang-way.

The declaration contains two counts, in each of which the age of deceased was stated, and the only allegation in respect to deceased leaving widow or next of kin, in either count, is, that he left plaintiff, his father, to whom the damages recovered can be distributed. There was a demurrer to the declaration, which was overruled, and plea of not guilty filed.

On the trial, it appeared that deceased left a mother, as well as father, and five brothers and sisters, and, upon request of plaintiff's counsel, the court instructed the jury that, if they found defendant guilty, then they should assess the plaintiff's damages at the amount of the pecuniary loss sustained, if any, by the next of kin to deceased, “that is to say, his father, mother, and brothers and sisters.”

The jury, finding the defendant guilty, assessed the damages at $1142.

A motion for new trial and in arrest of judgment was made and overruled. Judgment passed upon the verdict, from which the defendant appealed, and numerous points are urged for reversal.

We do not understand appellant's counsel as insisting here that the motion in arrest of judgment should have been allowed for insufficiency of the declaration. They are precluded from assigning error for the denial of that motion, because they demurred to the declaration and pleaded over after decision overruling the demurrer. Am. Express Co. v. Pinckney, 29 Ill. 392. The question which they raise is not affected by the ruling in that case. It is, that the plaintiff, having specified himself in the declaration as the only next of kin left by deceased, and alleged that the latter was a minor, and he his father, it was incompetent, and calculated to take the defendant by surprise, to enlarge the scope of damages on the trial by proving, and the jury taking into consideration, other next of kin, whose right to damage must be based upon another and different ground from that of the father.

The declaration limited the next of kin to the father. The plaintiff introduced proof, against defendant's objections, of others, viz: a mother and five brothers and sisters.

The court expressly instructed the jury that, if they found defendant guilty, they should take into consideration, in assessing damages, the pecuniary loss of the mother, brothers and sisters.

The precise question is, whether, under the rules of pleading and evidence, it was competent, where the plaintiff had specified only one next of kin--the father--to prove that there were others, and superadd their pecuniary loss to that of the father.

The statute declares that the amount recovered shall be for the exclusive benefit of the widow and next of kin of the deceased. Whatever might have been the claims of natural justice, the common law recognized no pecuniary interest in the life of any member of a family. But the theory of the statute is, that the widow, if there be one, and next of kin, or the latter only, if the deceased had no wife, have a pecuniary interest in the life of the person killed. The right is not extended to creditors, or anybody else not belonging to the class designated. If no one be left of such class, then there is no interest to be affected. The value of that interest is the amount which a jury may ascertain to be the damages sustained by some of that class in consequence of the destruction of that life in which they had such pecuniary interest, and the statute declares what shall be the measure of such damages, which is such sum as the jury shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding $5000.

When all the provisions of the act are regarded, it is apparent that, by its force alone, a legal pecuniary interest is created in favor of certain members of a family in the life of another upon whom the former may be dependent for support, or to whose services one of the former may be entitled; and that interest is invested with all the essential attributes of property, subject to the laws for the distribution of personal estate. In this last particular, alone, consists a similarity between this action and an ordinary action by an administrator. While the action itself is purely statutory, there is nothing in the act giving it which expressly or impliedly affects any of the established rules of pleading and evidence.

All of the ingredients which must necessarily concur to give a cause of action, are, wrongful act, neglect or default of the defendant, causing the death of the intestate under such circumstances as would entitle him to maintain an action if death had not ensued, and he must have left a widow or next of kin. These are indispensable prerequisites to a cause of action, and being shown, they entitle the plaintiff bringing the action as required, to nominal damages at least. But the fact of the survivorship of a widow or next of kin, being an essential element of the cause of action, renders it indispensable that it should be alleged in the declaration, and it was so decided in Chicago and Rock Isl. R. R. Co. v. Morris, 26 Ill. 400.

It is an elementary rule of pleading, that every fact essential to a cause of action...