Appeal from the Circuit Court of Cook county; the Hon. L.L.
WINN, Judge, presiding. Judgment reversed and cause remanded with
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 13, 1961.
This is an appeal from a judgment awarding the plaintiff, Nancy Jensen, Administratrix of the Estate of Ole Jensen, deceased, $10,000 for damages under the survival provision of the Federal Employers' Liability Act (45 U.S.C. § 59). The decedent, a switching foreman, sustained a back injury when he attempted to throw a puzzle switch which was in an unsafe and inoperative condition by reason of the fact that it had not been properly oiled and maintained. The issue of the defendant's liability was previously ascertained. See Jensen v. Elgin, J. & E. Ry. Co., 15 Ill. App.2d 559, 147 N.E.2d 204. An earlier judgment for $50,000 was reversed and the cause remanded for a new determination of the amount of damages. Ole Jensen died from other causes pending the former appeal, his administratrix was substituted and the complaint amended, limiting the recovery sought to damages which her decedent might or could have recovered in his lifetime for the injuries he sustained from the date of his injuries to the date of his death, for the benefit of Ole Jensen's three adult children. As Ole Jensen's three marriages terminated in divorce decrees prior to the instant litigation, the former wives are not concerned with these proceedings. Recovery is sought for the benefit of the three children, two of whom are married and living with their families. None is dependent on the father. There is no controversy among the children as to their respective rights under the statute.
The principal question presented is whether the right of action of an injured employee under the Federal Employers' Liability Act which survives his death from other causes may be prosecuted for the benefit of his adult nondependent children. The FELA, enacted in 1908, created a right of action in the injured employee and a right of action for wrongful death in his personal representative "for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents and, if none, then of the next of kin dependent upon such employee," 45 U.S.C. § 51; 35 Stat. 65, c. 149); but made no provision for survival of the injured employee's right of action in the event of his later death from his injuries or from other causes. American R.R. of Porto Rico v. Didricksen, 227 U.S. 145, 149; St. Louis, Iron Mountain & So. Ry. Co. v. Hesterly, 228 U.S. 702. The historical background of section 9 of the "survival statute," added by the amendment of April 5, 1910, is set forth in St. Louis, Iron Mountain & So. Ry. Co. v. Craft, 237 U.S. 648 at 660. Section 9 is as follows (45 U.S.C. sec 59):
"Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury."
It will be noted that the statutory designation in section 9 of the beneficiaries of the survival action is identical with the designation in section 1 (45 U.S.C. sec. 51) of the beneficiaries of the wrongful death action. By the recognized rule of statutory interpretation, identical language in different sections of the same statute must receive the same construction. The persons for whose benefit the survival action may be prosecuted are the same persons as those for whose benefit a wrongful death action may be brought. Illinois Central R. Co. v. Porter, 207 F. 311.
In 2 Roberts: Federal Liabilities of Carriers (2d ed.) Sec. 884, the author states:
"In view of the fact that the beneficiaries of the two causes of action available in case of death are described in identical language, and the construction of the statute by the Supreme Court in the Craft case, ante, as well as the further mandate of section 9 that `in such cases there shall be only one recovery for the same injury,' no reason appears to doubt that the vesting of causes of action surviving by virtue of section 9 is to be tested and controlled by the same considerations found applicable in respect of actions for death under section 1. And under this interpretation of the statute it results that no cause of action would vest in a surviving relative of an employee dying after sustaining injury under conditions giving him a right of action under section 1, unless such relative was a dependent of such employee, notwithstanding the recovery which might be had in such a case would not be measured by that relative's pecuniary loss by reason of the death, but rather by the loss and suffering of the employee himself, prior to his death, as a result of his injury."
In Gulf, C. & S.F. Ry. Co. v. McGinnis, 228 U.S. 173, the court held that an instruction which permitted recovery on behalf of a married daughter was reversible error. In Michigan C.R. Co. v. Vreeland, 227 U.S. 59, the court pointed out the special kind of damage which a minor child sustains from the death of a parent. See also Chicago, B. & Q. Ry. Co. v. Kelley, 74 F.2d 80; Thompson v. Camp, 163 F.2d 396; Teeters v. Pennsylvania R. Co., 118 F. Supp. 385. In Stark v. Chicago North Shore & M.R. Co., 203 F.2d 786, the court held that a minor child's share in the proceeds of a settlement of judgment in a FELA wrongful death action is similarly limited to his minority. See In re Backus' Estate, 73 Ohio App. 262; 55 N.E.2d 811; Williams v. Southern Pacific Co., 202 P. 356; Hines v. Walker, 225 S.W. 837.
Plaintiff maintains that pecuniary loss to children or dependency of children is not a prerequisite to the vesting of a survival action under Sec. 9 of the FELA. She says that this section remedied the oversight in Sec. 1 and that damages under Sec. 9 are not measured by pecuniary loss to the specific beneficiaries but by those damage elements which accrued to the decedent during his lifetime. She insists that pecuniary loss to the next of kin is not necessary where the action is based on the surviving right of action of a deceased employee and that in Hopps' Estate v. Chestnut, 324 Mich. 256, it was held that a survival action could be brought for the benefit of adult children without the showing of pecuniary loss or dependency. In that case there was a widow for whose benefit the action clearly survived under the statute. Two adult daughters of the decedent by a former marriage sought to share in the proceeds of the action and in an action to which only the widow and daughters were parties the court permitted this in accordance with the Michigan statute of descent and distribution. This was erroneous as the distribution of the proceeds of an FELA action is governed by federal law. Taylor, Adm. v. Taylor, 232 U.S. 363; In re Backus' Estate, 73 Ohio App. 262. The Michigan court held that these children were in a class of beneficiary entitled to share in a survival action irrespective of whether they were dependent upon the deceased for support or maintenance. The court did not consider at all the construction of the phrase "children of such employee" as being limited to minor children, but only the significance of dependency. In our opinion the decisions of the federal courts that under the FELA "children" means "children" during their minority, are persuasive and should be followed.
We are of the opinion that the same construction given by the courts to the meaning of Sec. 1 must be given to the phrase "children of such employee" in Sec. 9. No different legislative purpose can be discerned as the language is identical. No sound reason can be suggested why adult children should be permitted to share in the recovery for their parent's pain and suffering but not in the proceeds of a wrongful death action. The McGinnis case (228 U.S. 173) holds that a wrongful death action may not be prosecuted for the benefit of an adult, married daughter, (p. 174) not "in any way dependent upon the decedent." One cannot find any congressional purpose to include nondependent sons and daughters as beneficaries of a survival action when their father dies of other causes and exclude them when his death is the result of the defendant's negligence. Plaintiff, citing Black's Law Dictionary, says that the term "child" as used in the law when speaking of a decedent means a son or daughter of a parent irrespective of age. It is obvious that if "children" under Sec. 1, the wrongful death section, means children during their minority, it means the same under Sec. 9, irrespective of any dictionary definition. Neither the 26-year-old married son living with his family in Florida, nor the 33-year-old daughter living in Bellwood, sustained any loss as a result of their father's accident. Nancy, the administratrix, 23 years old, neither alleged nor proved any dependency on her father and the offer of proof was that her father had not supported her since she was 18. Since under the McGinnis case no judgment on their behalf could have been recovered if their father died as a result of defendant's negligence, they are not in a position to ask for a judgment in their favor when their father died of other causes.
For these reasons the judgment is reversed and the cause is remanded with directions to enter judgment against the plaintiff.
Judgment reversed and cause remanded with directions.
The decedent, Ole Jensen, was injured on August 8, 1954. He filed an action for personal injuries under section 1 of the FELA (45 U.S.C. § 51) and obtained a judgment for $50,000, which was entered on April 3, 1956. On August 23, 1956, Ole Jensen died from other causes. The case was appealed to this court and that judgment was reversed because of a faulty instruction on the subject of damages and the cause remanded for a new determination of the amount of damages. 15 Ill. App.2d 559. The plaintiff, Nancy Jensen, Administratrix, was substituted and the original complaint amended, limiting the recovery sought to damages which her decedent might or could have recovered in his life-time for the injuries he sustained from the date of his injuries to the date of his death. Recovery is sought under section 9 of the FELA (45 U.S.C. § 59) for the benefit of Ole Jensen's three children. Judgment was entered on February 19, 1960, on the verdict of the jury, for $10,000 and costs, in favor of the plaintiff and this appeal followed.
The primary question on this appeal is whether the decedent's cause of action for his personal injuries survives under section 9 ...