Vukovich v. Custer

• Decision Date: 20 May 1953
• Docket Number: No. 32600,32600
• Citation: 112 N.E.2d 712,415 Ill. 290
• Court: Illinois Supreme Court
• Parties: VUKOVICH v. CUSTER.

Page 712

112 N.E.2d 712

415 Ill. 290

VUKOVICH v. CUSTER.

No. 32600.

Supreme Court of Illinois.

May 20, 1953.

Lidschin & Pucin, Waukegan (Glenn K. Seidenfeld, Waukegan, of counsel), for appellant.

Hall, Meyer & Van Deusen, Waukegan (Lloyd A. Van Deusen, Waukegan, of counsel), for appellee.

SCHAEFER, Chief Justice.

On November 11, 1945, John Vukovich, while riding in an automobile owned and operated by Mike Komadina, suffered personal injuries in a collission between Komadina's car and another operated by William Custer. Vukovich died on April 25, 1946, at 6:41 A.M. On the same day, at some time after 8:00 A.M., a complaint captioned 'John Vukovich, plaintiff, vs. Mike Komadina and William Custer, defendants,' was filed in the circuit court of Lake County. The complaint charged Komadina with wilful and wanton misconduct in the operation of his automobile and Custer with both ordinary negligence and wilful and wanton misconduct. Damages in the amount of $25,000 were sought against each defendant.

Thereafter, on April 24, 1947, the death of Vukovich was suggested, and Lottie Vukovich, administratrix of her husband's estate, was substituted as party plaintiff and granted leave to file an amended complaint. The amended pleading, in addition to making the same allegation as the original complaint with respect to the operation of the automobiles by Komadina and Custer, alleged that Vukovich died as a result of his injuries; that he was survived by his wife, a son and a daughter as his next of kin and heirs-at-law, and that, as a result of his death, they had been deprived of money and services which the decedent had been accustomed to contribute to them. Damages were asked against each defendant in the amount of $10,000.

Summons was served on Komadina and returned not found as to Custer. An alias summons was served on Custer on April 27, 1951.

Komadina's motion and supplemental motion to strike the amended complaint and to dimiss the suit were denied, and he answered on April 28, 1951. He is not a party to this appeal.

Custer moved to strike the amended complaint and to dismiss the action on the ground that the original complaint was a complete nullity because it was filed after Vukovich's death, and therefore the amended complaint was likewise of no force and effect. The motion was allowed, and judgment was entered in favor of Custer and against plaintiff. The Appellate Court affirmed, 347 Ill.App. 547, 107 N.E.2d 426, and we granted leave to appeal.

To reverse the judgment plaintiff urges that the original complaint was not a nullity but was susceptible of amendment. She relies upon Challenor v. Niles, 78 Ill. 78, in which the court rejected the contention that a scire facias to revive a judgment was void because it was instituted in the name of a deceased person, and approved the substitution of the administrator by amendment to cure the 'irregular' commencement of the action. She cites also cases from other jurisdictions in which it has been held that actions instituted in the name of defunct corporations are not nullities, but may be amended. And she suggests that the law does not regard part of a day except in order to promote justice.

The defendant relies upon Brooks v. Boston & Northern Street R. Co., 211 Mass. 277, 97 N.E. 760, in which it was held that a complaint filed in the name of a deceased plaintiff was a nullity and therefore would not support an amendment substituting the administrator as party plaintiff. He also urges that Pease v. Rockford City Traction Co., 279 Ill. 513, 117 N.E. 83, and Harkin v. Ferro Concrete Construction Co., 185 Ill.App. 239, would preclude the amendment here attempted even if the deceased had been...