Appeal from the Superior Court of Cook county; the Hon. WALTER
R. O'MALLEY, Judge, presiding. Orders affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Leave to appeal to this court was granted, on petition of the plaintiffs, from orders entered in the Superior Court of Cook county dismissing, on motion of the defendants, two wrongful death actions brought in behalf of a minor against his father by Nudd as next friend. Each of these causes of action is set up in the same complaint.
The facts as set out in the pleadings are that William Matsoukas, Sr., one of the defendants, on October 26, 1952 was driving a vehicle on a public highway. With him in the automobile were Elizabeth Matsoukas, his wife, Mary Mead Nudd, his sister-in-law, and his two children, Spiros Matsoukas and William Matsoukas, Jr., both minors under the age of seven. It was alleged in the complaint that he "wilfully, recklessly and wantonly" drove his vehicle at an excessive rate of speed on a foggy night, when traveling was difficult because of the wet pavement; that he went through a stop light; that the automobile driven by him collided with one driven by David Thill, the other defendant, and as a result of this collision Elizabeth and Spiros Matsoukas and Mary Mead Nudd were killed, and the other minor, William, Jr., was severely injured, sustaining a skull fracture. Hubert Nudd was appointed as administrator of the estates of the three deceased persons and he filed suit under the wrongful death statute. In a separate count of the complaint, William Matsoukas, Jr., the surviving minor, through Hubert Nudd, as next friend, proceeded against William Matsoukas, Sr., and David Thill, alleging negligence on the part of Thill and willful and wanton conduct on the part of Matsoukas, as in the other counts of the complaint.
In all the counts it is alleged that defendant William Matsoukas on the day of the accident maintained liability insurance for himself in the operation of his vehicle; that said defendant has assigned, transferred and relinquished his right to recover for monies expended, etc., together with any right, interest or benefit that he may derive directly or indirectly from any such claim for damages made on behalf of his living son, as shown by a statement of the defendant Matsoukas attached as Exhibit No. 1 to the complaint. It is not indicated that a written assignment had been made.
Motions to dismiss the counts of the complaint which set up actions arising out of the deaths of Elizabeth Matsoukas and Spiros Matsoukas were filed by both defendants, and a motion to strike the cause of action on behalf of William Matsoukas, Jr., through his next friend, was filed by the defendant William Matsoukas, Sr. These motions were sustained, leaving pending the action arising out of the death of Mary Mead Nudd against both defendants, as well as the action of the surviving minor against defendant Thill. The motions to dismiss the causes of action founded on the deaths of Elizabeth Matsoukas and Spiros Matsoukas were sustained on the ground that the defendant William Matsoukas was a beneficiary and hence the action was barred. The motion to dismiss the cause of action against defendant Matsoukas arising out of the injuries of William Matsoukas, Jr., was sustained on the ground that his father, William Matsoukas, Sr., was a defendant, and the maintenance of such a suit is against public policy. The plaintiffs stood on their complaint and appealed.
There are two issues presented to this court: (1) Can the administrator of an estate maintain a suit for tort under the wrongful death statute where one of the surviving next of kin is made a principal party defendant? (2) Can a minor sue his father in tort where such father maintains liability insurance and waives his interest in any recovery?
[1-4] The actions arising out of the deaths of Elizabeth Matsoukas and Spiros Matsoukas were based upon the Wrongful Death Act of this State (Ill. Rev. Stat. chap. 70, pars. 1 and 2 [Jones Ill. Stats. Ann. 38.01, 38.02]). The action is purely statutory in origin and was designed by the legislature to create a cause of action in the name of the administrator for the pecuniary loss which the widow and next of kin may have sustained by reason of the death of the injured person, and the damages, under the statute, when collected, are to be distributed to the widow and next of kin according to the rules for distribution of personal property of persons dying intestate. An action brought by a child for damages for injuries suffered through the negligence of a third party is not barred by the contributory negligence of the parents. In an action brought by the administrator of the estate of a deceased child for damages resulting from the death of the child through the negligence of a third party, the contributory negligence of the parent is a bar to the action. Hazel v. Hoopeston-Danville Bus Co., 310 Ill. 38; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370. "The cause of action is entirely statutory and is a single cause of action. There is no separation of the damages to be assessed by the jury. Their finding is for a single gross amount in an inseparable cause of action, and the contributory negligence of one beneficiary who may be entitled to share in the amount recovered is a defense to the action." Hazel v. Hoopeston-Danville Bus Co., 310 Ill. 38. In Crutchfield v. Meyer, 414 Ill. 210, the court, citing Ohnesorge v. Chicago City Ry. Co., supra, affirmed the rule, stating that while the decedent, being under the age of seven, as a matter of law was not chargeable with contributory negligence, nevertheless contributory negligence of the parents will bar a recovery under the Wrongful Death Act.
Plaintiff-administrator contends that if the minor was suing for damages resulting from permanent injuries negligently inflicted by the defendant as a result of his willful and wanton conduct the plaintiff's claim would not be barred by his own contributory negligence (Walldren Express & Van Co. v. Krug, 291 Ill. 472); consequently since the defendant is charged with willful and wanton conduct his negligence cannot be imputed to the plaintiff in this case. That contention is disposed of in Crutchfield v. Meyer, supra.
The plaintiff-administrator argues that the rule in Hazel v. Hoopeston-Danville Bus Co., supra, holding the action to be a single cause of action and that there must be no separation of the damages to be assessed by the jury, should not be held as law today in view of amendments to the Wrongful Death Act. However, that case was decided after the last substantial amendment to the Death Act. The 1949 amendment merely gave an additional right to the administrator to sue for medical, funeral and administration expenses in a case where there was no widow or next of kin entitled to recover. This amendment does not by implication change the rule.
Counsel for the plaintiffs has filed an exhaustive and analytical petition for leave to appeal, which by leave of court stands as their brief in this case and is hereafter referred to as such. In the brief the plaintiff-administrator argues fervently that the rule holding the contributory negligence of the parent in an action under the Wrongful Death Act will bar recovery is logically unsound and that the later cases in the United States support the doctrine that the negligence of one beneficiary in an action for wrongful death does not bar recovery for the benefit of innocent beneficiaries. It is undoubtedly true, as has been said in a number of cases, that the rule barring recovery is an extremely harsh one, that the courts have generally refused to extend it, have taken every opportunity to whittle it down, and in some cases have partially repudiated it. In 25 C.J.S. Death § 46 it is stated: "Contributory negligence of a beneficiary is generally held to bar an action for death brought by or for the benefit of such beneficiary." In the opinion in the Hazel case the court considered and discussed the authorities from other jurisdictions contra to the rule announced in Illinois. This same argument was there made and overruled by the court.
The plaintiff-administrator also argues that the question raised in the instant case as to the contributory negligence of the father is a matter of first impression and that this court is not bound by the previous decisions. With that contention we cannot agree.
It is true that the Illinois rule as laid down in Hazel v. Hoopeston-Danville Bus Co., supra, has been subject to criticism (38 Ill. Law Rev. p. 259). It is, however, the law of Illinois, and binding upon us, that in an action brought under the Wrongful Death Act the contributory negligence of the parent-beneficiary will bar the action, and the cause of action is inseparable and the jury's finding must be for a single gross amount. This rule relates to inter-family relationship and is a matter of public policy, the control of which rests primarily in the legislature.
The plaintiff-administrator relies upon the case of Welch v. Davis, 410 Ill. 130, in which case a husband shot and killed his wife and immediately thereafter shot and killed himself. The wife left surviving a daughter by her first marriage, who was the sole heir at law and next of kin of the deceased. An action was brought by the administrator of the wife's estate against the executor of the husband's estate. It was argued by the defendant that since at common law the wife could not have maintained an action in tort against her husband during her lifetime, the administrator could not recover in an action for her wrongful death. The Supreme Court, after calling attention to the fact that this particular question had never been before presented for decision in this State, holds that the disability of the wife to sue her husband is personal and that such disability should not be extended to bar the action brought by the administrator to recover damages for the pecuniary loss suffered by the minor dependent daughter of the wife. The immunity based upon the preservation of marital harmony could there be disregarded, since the marriage had been terminated, the husband and wife both being dead, and the action was brought for the benefit of a third person. That case is not authority for the point urged in the instant case.
The plaintiff-administrator cites Howlett v. Doglio, 402 Ill. 311, in which action the plaintiff sued under the Dramshop Act for damages resulting from the death of her daughter. The court stated that in an action under the Dramshop Act the contributory negligence of the deceased does not bar recovery, while it does in an action brought under the Wrongful Death Act, holding that the Wrongful Death Act and the Dramshop Act have essentially different basic ...