Appeal from the Municipal Court of Chicago; the Hon. JOSEPH B.
HERMES, Judge, presiding. Judgment reversed and cause remanded
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This is an appeal by plaintiff, Harriet Waller, administrator of the estate of Mark Waller, deceased, from an order of the Municipal Court entered on December 13, 1962, dismissing the cause of action on the ground that the claim set forth in the amended claim is barred by the two-year period fixed by the Wrongful Death Act.
The decedent, Mark Waller, died on January 30, 1960. The Statement of Claim was filed on January 27, 1962. The Statement of Claim failed to set out who were "next of kin" and their "pecuniary loss" as required by section 2 of the Wrongful Death Act (Ill Rev Stats c 70, § 2) which states inter alia:
"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 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, . . ."
Appellant's position is that under section 46(2) of the Civil Practice Act (Ill Rev Stats c 110, § 46(2)) the complaint can be amended to supply the missing allegations as long as the claim was filed within the two-year jurisdictional period. She believes that such amendment would relate back to validate the original filing. Appellee's position is that the statements of "next of kin" and "their pecuniary loss" are jurisdictional, and that since no cause of action can be stated under section 2 of the Injuries Act without them, no complaint was filed within two years, and there is nothing to relate back to.
The last time an appellate court has been called upon to study this question was in the case of Serio v. Slifkin, 291 Ill. App. 614, 9 N.E.2d 422 (1937). In that case we discussed the contention that under section 46 of the Practice Act, where the original complaint fails to set out who were the next of kin, an amendment to the pleadings is allowed. In determining that no amendment could be allowed we relied upon Friend v. Alton R. Co., 283 Ill. App. 366 (1936) which faced a somewhat similar question a year previously, and quoted therefrom (368, 369):
"The Injuries Act of 1853 gave a new cause of action when the injury resulted in death. In cases where the injury resulted in death the common-law action was abated, but under the Act of 1853, the right of action was continued in the name of the legal representatives of the deceased for the benefit of the widow and next of kin. This continued action is a new suit unknown to the common law and is purely statutory. Wilcox v. Bierd, 330 Ill. 571. The act, having created new liabilities and rights unknown to the common law, conferred jurisdiction which can be exercised only in the manner and within the limitations prescribed by the statute and the plaintiff must bring himself within the conditions of the act. Welch v. City of Chicago, 323 Ill. 498; Bishop v. Chicago Rys. Co., 303 Ill. 273.
"The action must be brought by and in the name of the personal representative of the deceased and shall be commenced within one year after the death of such person. The period of one year is not a statute of limitations but is a condition of the liability itself.
"We are of opinion that section 46(2) of the Civil Practice Act has no application to actions when the period of time within which a suit shall be commenced is a condition of the liability itself and the person authorized fails to bring the action within the time limited, but after the lapse of the period such personal representative is substituted by amendment as party plaintiff in a suit commenced by persons not authorized to sue by the statute creating the liability.
"The bringing of the suit in the name of the personal representative of deceased, and the commencement of the suit within one year after the death of such person by his personal representative are conditions precedent to the right to recover damages under the Injuries Act for injuries resulting in the death of a person caused by the wrongful act of another."
Following the above quote we stated at page 4 of the opinion:
"This decision applies to the instant case. When the complaint was filed it was not stated therein that there was a widow or next of kin surviving at the date of death of Louis Pistilli, and even if the plaintiff had filed an amendment showing a widow or next of kin it would appear from the date that leave to amend was granted more than one year after the date of death of Louis Pistilli on January 13, 1934."
The correctness of the decision in Serio v. Slifkin rests entirely upon the merits of the position of the court in Friend v. Alton R. Co., and cannot be supported on any other independent ground.
In Metropolitan Trust Co. v. Bowman Dairy Co., 292 Ill. App. 492, 11 N.E.2d 849 (1937), affd 369 Ill. 222, 15 N.E.2d 838 (1938), a case in which the contention was presented that there was a fatal variance between the allegations of the original complaint and the proofs, and that an amendment made to cure this variance states a new cause of action that is barred by the statute of limitations contained in the Injuries Act, this court held at 507 "that under sec 46 of the Practice Act the amendment was ...