Wilcox v. Bierd

• Decision Date: 23 June 1928
• Docket Number: No. 16605.,16605.
• Citation: 162 N.E. 170,330 Ill. 571
• Parties: WILCOX v. BIERD et al.
• Court: Illinois Supreme Court

330 Ill. 571

162 N.E. 170

WILCOX

v.BIERD et al.

No. 16605.

Supreme Court of Illinois.

June 23, 1928.

Action by Marshall Wilcox, administrator, against William G. Bierd and others. From a judgment for defendants, plaintiff appeals.

Affirmed.Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Sangamon County; E. S. Smith, Judge.

George M. Morgan and Edmund Burke, both of Springfield, for appellant.

William L. Patton, of Springfield (Silas H. Strawn, of Chicago, of counsel), for appellees.

DUNCAN, J.

Appellant brought an action of trespass on the case for the wrongful death of Percy C. Wilcox, in the circuit court of Sangamon county, against appellees, receivers for the Chicago & Alton Railroad Company, for the benefit of the next of kin of the deceased, under ‘An act requiring compensation for causing death by wrongful act, neglect or default,’ approved and in force February 12, 1853. Laws of 1853, p. 97. The original declaration contained three counts, the first count charging negligence of appellees' servant in failing to lower gates maintained by the railroad company at a certain street crossing in Springfield, and negligence of appellees in running a certain train over said crossing at the dangerous rate of speed of 40 miles an hour. The second count charged negligence of appellees' servant employed at said crossing in failing to lower the gates maintained by the railroad company at the crossing, in accordance with a certain order or resolution adopted by the city council of the city of Springfield so as to warn persons and stop them from going on the track when trains were crossing said street. The third count charged negligence of appellees in the violation of a certain ordinance of the city of Springfield requiring them to run their trains over said crossing at a speed of not more than 10 miles per hour. and in negligently running their train over the crossing at a speed of 40 miles per hour. It is further alleged in the three counts that Wilcox was traveling on the street and attempted to cross the railroad at said crossing, and, while exercising reasonable care for his safety while approaching and crossing said railroad, the locomotive engine of the train of appellees collided with and struck with great violence the automobile in which he was riding and killed him; that at the time of his death he was 29 years old, and left surviving him as his next of kin one child of the age of 9 months, named Mildred Wilcox, to the damage of appellant in the amount of $10,000.

Appellees filed a verified plea in abatement, alleging that the suit is brought under said act to recover damages for the supposed wrongful killing of Percy C. Wilcox; that at the time of the death of Wilcox he left surviving him no widow, but left as his sole surviving next of kin his infant daughter, Mildred, of the age of 9 months; that within 30 minutes after the death of Wilcox, Mildred departed this life; that no administration has ever been taken out on the estate of Mildred, and that she departed this life before the appointment of appellant as administrator of the estate of Wilcox and before the bringing of this suit; that by the death of Mildred the cause of action on account of the death of Wilcox created by the act abated and no cause of action survived to appellant, and no right has ever arisen in appellant to bring or maintain this action. Appellees prayed judgment of the declaration and suit and that the same may be abated and quashed.

To the plea of appellees appellant filed a general demurrer, which was overruled by the court. Appellant asked and was granted leave to file, and did file, three additional counts to the declaration, which contained substantially the same averments made in the original counts, except that all the additional counts contain conclusions slightly different from those in the original counts, substantially in these words: Mary T. Wilcox, wife of Percy C. Wilcox, and all his children, namely, Edna Wilcox and Mildred Wilcox, were then and there riding in the automobile with him, and all of them were killed by the locomotive and train; that the wife, Mary T. Wilcox, and the child, Edna Wilcox, died instantly; that within 10 minutes after their death Wilcox died, at the age of 29 years; that within 30 minutes after he died the other child, Mildred, died, at the age of 9 months; that Wilcox was in the exercise of reasonable care for their safety while approaching and crossing the railroad; that both the father and mother of Wilcox, to whom he contributed support, survive him and are now living, and that no brothers or sisters or descendants of brothers or sisters survived him-to the damage of appellant, as administrator, in the sum of $10,000.

To the additional counts appellees demurred generally and specially. The special causes of the demurrer are that on the face of the counts it appears that the deceased left surviving him his daughter, Mildred Wilcox, who died within 30 minutes after his death; that the right of action, if any, accrued to the benefit of Mildred and to no other person or persons; that upon the death of Mildred the right of action which had so accrued for her personal and sole benefit did not survive her for the benefit of any person or persons, but abated and cannot now be prosecuted, and that appellant has no right or cause of action upon which a recovery may or can be predicated or had. The court sustained the demurrer and entered judgment against appellant. On appeal to the Appellate Court for the Third District, that court affirmed the judgment and granted a certificate of importance and an appeal to this court, which was perfected by appellant.

As we understand the contentions of appellant, they are, in substance, that the additional counts state a good cause of action against appellees in the name of the administrator of Percy C. Wilcox, deceased, for the use of Mildred Wilcox or her legal representatives, or for the use of the father and mother of Wilcox. Appellant's first theory or argument is that Mildred sustained actual damages by the wrongful killing of her father, and not merely nominal damages, because of the fact that she only survived her father 30 minutes; that appellees cannot be heard to make the claim that Mildred only sustained nominal damages because she only lived 30 minutes after her father's death, after admitting by the demurrer that they wrongfully caused the death of her father and that she only lived 30 minutes thereafter, because they also at the same time wrongfully caused her death; that therefore the cause of action did not abate by reason of the death of Mildred; and that there should be a recovery in this suit for substantial damages for the use of Mildred's legal representatives. The second contention is that as section 2 of said act provides that the amount recovered shall be for the exclusive benefit of the widow and next of kin and distributed as provided by law, it necessarily means an amount which is material or substantial, and if by reason of death the survivorship of the immediate next of kin, or some of them, is so short that there can be no material or substantial damages to recover and distribute to the survivor or to his estate, then such survivor is not within the term ‘next of kin.’ It is then asserted that within the spirit and intendment of said act only substantial damages are contemplated; that in this case it can make no prejudicial difference to appellees whether substantial damages be recovered under the original or under the additional counts, as the provisions for distribution in section 2 of the act do not concern them; that so long as there is a next of kin of Wilcox surviving who has sustained pecuniary loss, the action may be maintained by appellant although such next of kin would not have been entitled to share in the distribution if others of the next of kin who survived had not died.

Appellees' position is that the issues of law in this case are raised in two modes: First, by the demurrer to the special plea to the original counts; and, second, by the demurrer to the additional counts; and that the same legal questions arise upon each demurrer. They contend that no recovery in any amount or upon any theory can be had by the representative of the father for the benefit of the representatives of the child, who survived only thirty minutes after the death of her father. They also contend that the action which arose upon the death of the father for the benefit of the surviving child abated upon the death of the child, and even though the action did not completely abate, it survived in the personal representative of the father for the recovery of only nominal damages-i. e., the damages suffered by the child during the 30 minutes preceding its death-and that this court will not reverse the judgments of the appellate and trial courts in favor of appellees and remand the cause to the trial court, where only nominal damages would be recoverable.

If the contention of appellant that on the death of Mildred Wilcox the action survived for the benefit and use of her legal representatives is sustainable, there would appear to be reasonable ground for his contention that a good cause of action is stated by the additional counts of the declaration for the recovery of substantial damages. In Swift Co. v. Gaylord, 229 Ill. 330, 82 N. E. 299, it was said:

‘If there was an actual loss of pecuniary aid, one element in determining its amount was the length of time such aid might be expected to continue, and while it might be terminated by many contingencies other than the death of the giver or the receiver, yet the probable length of their respective lives was proper to be taken into consideration in estimating the amount.’

[1] That decision is authority for the contention of appellees that the reasonable expectation of life of the deceased and of his next of kin may be considered in estimating their...