Vukovich v. Custer

• Decision Date: 03 July 1952
• Docket Number: No. 10598,10598
• Citation: 107 N.E.2d 426,347 Ill.App. 547
• Parties: VUKOVICH v. CUSTER.
• Court: United States Appellate Court of Illinois

Page 426

107 N.E.2d 426

347 Ill.App. 547

VUKOVICH v. CUSTER.

No. 10598.

Appellate Court of Illinois, Second District.

July 3, 1952.

Lidschin & Pucin, Waukegan, for appellant.

Hall, Meyer & Van Deusen, Waukegan, for appellee.

WOLFE, Justice.

John Vukovich filed a suit in the Circuit Court of Lake County against Mike Komadina and William Custer. The complaint alleged that Vukovich was riding as a passenger in the car owned and operated by Mike Komadina, when the car collided with the car of William Custer and John Vukovich was injured. The suit was for the injuries he received in the accident. This suit was started on April 25, 1946. On April 24, 1947, Lottie Vukovich suggested the death of John Vukovich, the plaintiff, in the original complaint and was granted leave to substitute Lottie Vukovich, Administratrix of the Estate of John Vukovich, deceased, as a party plaintiff, and was given leave to amend the complaint and proceed under the wrongful death act. Mike Komadina filed his answer and he is not directly involved in this appeal.

Later, service was secured on William Custer who filed a motion to strike the amended complaint and dismiss the suit, because the original complaint was filed subsequent to the death of the original plaintiff, John Vukovich, and that no proper cause of action existed at that time, as purported to be brought in the said complaint, and therefore the amended complaint was of no force and effect. It developed that John Vukovich had died before the original suit was filed. The Court sustained the motion to strike, and dismissed the suit as to William Custer. It is from this order that the plaintiff has appealed to this Court.

It is claimed by the appellee in his motion that the original suit filed by John Vukovich was a nullity, as there was no such person in existence at the time the suit was filed, and therefore the complaint could not be amended.

In 67 C.J.S., Parties, § 4, p. 896, we find the following: 'In every action there must be a real plaintiff who is a person in law and is possessed of a legal entity or existence as a natural, artificial, or quasiartificial person, and a suit brought in the name of that which is not a legal entity is a mere nullity.

'In every action there must be a real plaintiff, and for a standing as party plaintiff it is necessary that plaintiff be a person in law. A civil action may be maintained only in the name of a person in law, an entity, which the law of the forum may recognize as capable of possessing and asserting a right of action. The rule is sometimes stated so as to comprehend only two forms of legal entity for the purpose of maintaining an action. Thus, the rule has been formulated to the effect that in all civil actions the prime requisite as to parties is that plaintiff must be either a natural or an artificial person, and that an action may not be maintained in the name of a plaintiff who is not a natural or an artificial person having legal entity to sue or be sued.' On page 898 of 67 C.J.S. we find the following: 'The capacity to sue exists only in persons in being, and not in those who are dead or who have not yet been born, and so may not be brought before the court, and a proceeding may not be brought in the name of a deceased plaintiff, inasmuch as such a proceeding is a nullity.'

It is stated in Mortimore v. Bashore, 317 Ill. 535, 539, 148 N.E. 317, 319, 'The capacity to sue or be sued exists only in persons in being, and not in those who are dead, or have not yet been born, and so cannot be brought before the court.' Susemiehl v. Red River Lumber Co., 305 Ill.App. 473, 27 N.E.2d 285. This case was appealed to the Supreme Court and affirmed, 376 Ill. 138, 33 N.E.2d 211, 212, and in it the Supreme Court says: 'Beginning with the case of Holton v. Daly, 106 Ill. 131, and continuing to the present time, this Court has been committed to the doctrine that if death results from the injuries sued for, the suit of the injured person abates and cannot be further prosecuted.'

In MacAffer v. Boston & M. R. R., 268 N.Y. 400, 197 N.E. 328, 329, decided by the Court of Appeals of New York, the Court in discussing a similar question uses this language: 'The judgment is in such case futile, because in truth no action is then pending between the parties named. If the plaintiff in that action was not in existence, the defendants named in the summons and complaint were, in fact, not required to appear in court and answer the complaint.'

The record in this case shows that at the time the original suit was filed, John Vukovich had died, and it is our conclusion that at that time, the suit was a nullity and void. The question then arises, could the administrator of his estate amend the original complaint so as to have a valid suit in Court? The Court in the case of Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, 102 N.E. 819, 821, states the rule of law that is applicable to the facts in this case and is as follows: 'The right to maintain an action by one who without his fault has suffered a personal injury through the negligence or wrongful act of another has always existed wherever the common law of England was in force. This right is not created by the Legislature, and our statute on injuries has nothing to do with it. Under the common law an action for personal injury did not survive the death of the person injured, and prior to the Survival Act of 1872, § 123, it was the law of this state that an action for damages for personal injury abated with the death of the injured party in all cases where the death was not the result of the injury. Holton v. Daly, 106 Ill. 131. In 1853 the Legislature passed an act, which has been in force ever since, requiring compensation for causing death by wrongful act, neglect or default, and providing that suit therefor should be brought in the name of the personal representative for the benefit of the widow and next of kin. This statute was not a survival statute. It did not continue to the personal representative the cause of action that the injured party had under the common law, but it created a new and independent cause of action never before that time recognized as existing...