injury which caused the death, by the executor or administrator of the deceased for the use of the persons hereinbefore specified in the case of an indictment. 102. ACTS AND RESOLVES PASSED BY THE GENERAL COURT OF MASSACHUSETTS. (St. 1897, c. 416; now Revised Laws of 1902, c. 171, § 2.) Section 2. If a person or corporation by his or its negligence, or by the gross negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than five hundred nor more than five thousand dollars to be assessed with reference to the degree of his or its culpability or of that of his or its agents or servants, to be recovered in an action of tort, commenced within one year after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin. 103. LAWS OF THE STATE OF ILLINOIS ENACTED BY THE GENERAL ASSEMBLY. An Act requiring Compensation for causing Death by Wrongful Act, Neglect, or Default. (Feb. 12, 1853; now Revised Statutes, 1874, c. 70, Injuries). § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, 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. § 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action 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 the law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they 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 the sum of $5,000:1 Provided, that every such action shall be commenced within two years after the death of such person. 104. REVISED STATUTES OF THE STATE OF ILLINOIS, 1874, COMPILED AND EDITED BY HARVEY B. HURD, COMMISSIONER OF REVISION. Administration of Estates; Actions which Survive. (Chap. 3, § 122.) 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. Increased to $10,000 by St. May 13, 1903.] 105. CODES AND STATUTES OF CALIFORNIA. Code of Civil Procedure. (1873. Pomeroy's ed., 1901.) Sec. 376. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person is employed by another person who is responsible for his conduct, also against such other person. . . . Sec. 377. When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person is employed by another who is responsible for his conduct, then also against such other person. In every action under this and the two preceding sections, such damages may be given as under all the circumstances of the case may be just. 106. CODES AND STATUTES OF CALIFORNIA. Code of Civil Procedure. (1873. Pomeroy's ed., 1901.) Sec. 1582. Actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereto, or for partition of real property, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by and against their respective testators or intestates. . . . Sec. 1583. Actions for wasting, destroying, taking, carrying away, or converting any goods or chattels, or for trespass on real estate, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates.1 SUB-TOPIC B. EFFECT OF THE STATUTES, AS CREATING A NEW (1) FOR THE SOCIETARY HARM CAUSED BY THE DEATH TO THE FAMILY OR OTHER PERSONS RECEIVING SUPPORT, OR (2) FOR THE DECEASED'S PERSONAL HARM BY LOSS OF LIFE 107. CHICAGO & ROCK ISLAND RAILROAD v. MORRIS SUPREME COURT OF ILLINOIS. 1861 26 Ill. 400 THIS was an action on the case by appellees against appellant under the statute, in the La Salle Circuit Court. The declaration alleges in the first count, that the defendant, on the 28th of August, 1857, was possessed of a certain railroad, and also of a certain steam engine, drawing a train of cars thereto attached upon said railroad, and that certain servants of said defendant, in its employment, 1 [CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: see the citations in the footnote to No. 28, ante, and the following: Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XI, § 373, p. 363.] had the management and direction of said engine, yet the said defendant, by its said servants, took so little and so bad care of said engine, etc., that by and through the mere negligence, carelessness and mismanagement of the said defendant, by its said servants employed as aforesaid, and for want of due and proper care of the said defendant, by its said servants, that the said servants with great violence, drove the said engine against and upon the said Joseph Joder, deceased, in his lifetime, as he, the said Joseph Joder, with a certain wagon and horses, was upon said railroad of the defendant, crossing the same in a certain public highway, where said highway crossed the said railroad, at the county aforesaid, whereby the said Joseph Joder was killed. The second count alleges, that on the 28th of August, A. D. 1857, the defendant was a corporation, owning and possessed of a certain railroad, and of a certain train of cars and of a certain engine thereto attached, drawing said train upon said railroad, of which certain servants in the employ of said railroad had the care, management and direction. That said railroad crossed a certain public highway, and that said engine and train, under the management of said servants, was approaching and crossing the same, and that said Joseph Joder, deceased, in his lifetime. was, with a certain wagon and horses drawing the same, crossing said railroad in a certain public highway, where the same cross each other, and said servants, etc., having the management, etc., of said engine and train of cars as aforesaid, neglected to ring any bell upon said engine, and neglected to whistle any whistle thereon at the distance of eighty rods from said crossing, and neglected to keep any whistle whistling, or any bell ringing, while said engine and train were approaching said crossing from eighty rods therefrom and until they have crossed the same, but on the contrary thereof, having the management, etc., as aforesaid, without any bell being rung, and without any whistle being sounded at the distance of eighty rods from said crossing, and without any bell being kept ringing, and without any whistle being kept sounding, etc., by and through such neglect to ring any bell or sound any whistle, as aforesaid, drove the said engine against and upon the said Joseph Joder, in his lifetime, he then being upon said railroad crossing and in said public highway, whereby the said Joseph Joder was then and there killed; to the damage of said plaintiffs of five thousand dollars. Plea, not guilty. Joinder by plaintiffs. The appellees recovered a judgment of two thousand dollars in the Court below. Glover, Cook, and Campbell, for appellant. E. S. Leland, for appellees. BREESE, J. This action was brought under the Act entitled "An Act requiring compensation for causing death by wrongful act, neglect, or default," approved February 12, 1853. (Scates' Comp. 422.) A full exposition of this statute, its object and purposes, was given by this Court in the case of the City of Chicago v. Major, 18 Ill. 349. It is there said the action is to be brought by the executor or administrator of the deceased, and is not limited to those cases where he leaves a widow, and any money recovered in such action is not to be treated as a part of the estate of the deceased, creditors not deriving any benefit from it; that it is to be distributed among those to whom the personal estate would descend in the absence of a will, according to the statute of descents. And further, that the damages can only be for pecuniary loss, not for the bereavement. The first objection made by the appellants is as to the sufficiency of the declaration, in this, that it is not averred that the railroad owned by the defendants and used by them, was used in the county and State in which the action was brought. This would be a good objection if presented on demurrer, but after the verdict it cannot avail. A fact of that description will, to sustain a verdict, be considered as proved or admitted. The next objection is, that it is nowhere alleged in the declaration, that the deceased left a widow or next of kin. The second section of the statute provides that every such action shall be brought by and in the names of the personal representatives of such deceased person; and the amount recovered in every such action, 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 in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife or next of kin of such deceased person, not exceeding the sum of five thousand dollars. (Scates' Comp. 422.) Taking the exposition of this statute by this Court in Major's case as the correct view of it, we are satisfied, before a party suing for these damages can be allowed to recover, it must be alleged in the declaration, and proved, that the deceased left a widow or next of kin, to whom the damages could be distributed. The statute evidently intends to give no damages for the injury received by the deceased, but refers wholly to the pecuniary loss which his wife and next of kin may be proved to have sustained, and the damages are not assessed to be applied to the general necessities of the estate, but belong exclusively to the widow and next of kin, to whom they are to be distributed. The statute makes their pecuniary loss the sole measure of damages. The satisfaction of that loss is, therefore, the sole purpose for which an action can be instituted, there being nothing to be allowed for the bereavement, for solatium. This being so, the facts that there are persons entitled by law to claim this indemnity, and that they have sustained a loss justifying their claim, must be proved on the trial, and therefore must be averred in the declaration, as much so as the death of the party and the wrongful act or neglect of the defendant. We are satisfied there is no right of action under this statute except upon the basis of a pecuniary damage sustained by the widow and next of kin of the deceased. Our statute is a copy of the statute of New York, enacted in 1847, and the Courts of that State hold, as we do here, that the only correct basis for the action is the pecuniary damage sustained by the widow and next of kin, that the damages are limited to an indemnity for such loss, and that facts showing such a loss must be proved and must be averred in the complaint, or the foundation of the action fails. Per Hoffman, J., Safford v. Drew, 3 Duer, 635. The statute of New York is substantially a copy of the first two sections of 9th and 10th Victoria, c. 93, enacted in August, 1846, and in the first case which arose under that Act (Blake v. The Midland Railway Company, 10 Law and Eq. Rep. 439), it was held that the measure of damages was not the loss or suffering of the deceased, but the injury resulting to his family from his death, and that the manner in which the pecuniary loss to the persons for whom the action is brought arose, must be alleged. We remark here, that the second section of 9th and 10th Victoria, c. 93, provides that the action shall be for the benefit of the wife, husband, parent, and child of the person whose death has been caused by neglect, etc. This case shows that the rule governing the measure of damages is the pecuniary loss to the family of the deceased, and forms the exclusive ground of the action. In examining the declaration, we find no one averment under which this proof could be made. It is, then, substantially defective, and advantage can be taken of it in this Court. On the trial the plaintiff tacitly admitted the necessity of the averment of a widow and next of kin, by proof of those facts. We may readily imagine many cases, where persons have been for years disconnected from, and isolated from their family connections, and remained unknown to their kindred, and who, in no reasonable probability, would ever return to, or afford any support to their families or relatives. In case of their death, there would be no next of kin who could sustain any pecuniary loss by their death, because they could have derived no pecuniary benefit from a continuance of their lives. In answer to this objection, it is urged by appellee's counsel, that there were no such averments in the declaration in Major's case, and that the judgment was rendered upon that record. The reply to this is, this objection was not made in that case at any time, nor the attention of the Court called to the point. The case was decided on wholly different grounds. For want of a sufficient declaration, the judgment must be reversed, and the cause remanded, with leave to amend the declaration, and for further proceedings in the cause. Judgment reversed. |