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Li Petri v. Turner Construction Co.

OPINION FILED JANUARY 19, 1967.

MARY LI PETRI, ADMX., APPELLEE,

v.

TURNER CONSTRUCTION CO. ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 27, 1967.

A jury in the circuit court of Cook County returned a verdict in the amount of $70,000 in favor of Mary Li Petri, widow of Sam Li Petri, and against Turner Construction Company and Fischbach, Moore & Morrissey, Inc., for the death of her husband caused by defendants' violation of the Structural Work Act. (Ill. Rev. Stat. 1955, chap. 48, pars. 60-69.) The court entered a judgment on the verdict and defendants have appealed directly to this court because a constitutional question is involved.

Sam Li Petri was fatally injured on the morning of June 7, 1957, while using a material hoist at the Inland Steel Building which was under construction at Dearborn and Monroe streets in Chicago. Turner Construction Company was the general contractor and it subcontracted the lathing, plastering and acoustical ceiling work to McNulty Brothers Co., Li Petri's employer. The hoists for use in the erection of the building were leased by Turner from the Thomas Hoist Company. Fischbach, Moore & Morrissey, Inc., was the electrical subcontractor and installed the electrical components and signal system for the hoist. Prior to trial, defendant Inland Steel Company was dismissed and at the close of plaintiff's case, the motion of Thomas Hoist Company for a directed verdict was sustained.

Both Turner and Fischbach argue that the monetary limitation of the injuries statute, commonly called the Wrongful Death Act, (Ill. Rev. Stat. 1955, chap. 70, pars. 1 and 2,) should be applied to the cause of action created under section 9 of the Illinois Structural Work Act, commonly called the Scaffold Act. (Ill. Rev. Stat. 1955, chap. 48, pars. 60-69.) This act provides in part:

"For any injury to person or property occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life * * * a right of action shall accrue * * *, for a like recovery of damages for the injuries sustained by reason of such loss of life * * *."

The Wrongful Death Act provides in part:

"§ 1. Whenever the death of a person shall be caused by wrongful act, neglect or default * * * the person * * * or company or corporation * * * shall be liable to an action for damages * * *.

"§ 2. * * * in every such action the jury may give such damages as they shall deem a fair and just compensation * * * not exceeding $25,000 where such death occurred on or after the effective date of this amendatory act of 1955."

Fischbach's theory that the monetary limitation of the Wrongful Death Act should be applied to section 9 of the Scaffold Act has surface appeal and is essentially as follows. At common law there was no cause of action for wrongful death and there is no such action today except as provided by the legislature. (Hall v. Gillins, 13 Ill.2d 26.) In 1853 the legislature by a general statute, the Wrongful Death Act, created a cause of action for a death caused by wrongful act, neglect or default and limited the amount of recovery to $5000 (Laws of 1853, p. 97); and while it has from time to time increased the amount recoverable under the act, $10,000 in 1903 (Laws of 1903, p. 217); $15,000 in 1947 (Laws of 1947, p. 1094); $20,000 in 1951 (Laws of 1951, p. 393); $25,000 in 1955 (Laws of 1955, p. 2006) and $30,000 in 1957 (Laws of 1957, p. 1939), it has consistently affirmed its intention to limit the recovery. The legislature also enacted several statutes after 1853 in which a recovery for death was allowed as a part of the statute's over-all scheme to regulate a particular subject matter. (See, e.g., Dram Shop Act (Laws 1871-72, p. 552); Mines and Mining Act (Laws 1899, p. 300); Structural Work Act (Laws 1907, p. 312).) Fischbach contends that the general provisions of the Wrongful Death Act are to be applied to all death actions, including those created under special statutes such as the Dram Shop Act, the Coal Mining Act and Scaffold Act except where the special statute provides otherwise. It asserts that the $20,000 limitation of the Dram Shop Act (Ill. Rev. Stat. 1955, chap. 43, par. 135) and the $20,000 limitation of the Coal Mining Act (Ill. Rev. Stat. 1955, chap. 93, par. 10.07) are necessary because they are different from that allowed under the general provisions of the Wrongful Death Act and that when no limitation on damages for death is provided in the special statute, as in the Scaffold Act, the limitation of the Wrongful Death Act is to be applied.

Turner's argument on this point is essentially the same as Fischbach's. It asserts that the Wrongful Death Act, the Scaffold Act and the Coal Mining Act are in pari materia, that the public policy in this State is that there be a limitation of recovery for wrongful death and that if the limitation on recovery of the Wrongful Death Act is not applied to the recovery for death under the Scaffold Act, "absurd consequences ensue."

The fallacy of defendants' theory is that the legislature has expressly limited the amount recoverable for death in the special statutes, although the limitation of recovery under the Wrongful Death Act was the same. In fact, the amount of the limitation in each of the special acts was apparently taken from the amount recoverable under the Wrongful Death Act at the time the limitation was placed in the special act. For example, a $5000 limitation was added to the Mines and Miners Act in 1887 (Laws 1887, p. 235) when recovery under the Wrongful Death Act was limited to $5,000; a $10,000 limitation was contained in the Occupational Diseases Act passed in 1911 (Laws 1911, p. 334) when recovery under the Wrongful Death Act was limited to $10,000; and a limitation of $15,000 was added to the Dram Shop Act in 1949 (Laws 1949, p. 816) when recovery under the Wrongful Death Act was limited to $15,000. In sharp contrast, the Scaffold Act has never contained a limitation on the amount recoverable for death under the act.

Attempts to read the monetary limitation of the Wrongful Death Act into another statute also providing a death recovery are not new. In O'Connor v. Rathje, 368 Ill. 83, the defendants argued that the Dram Shop Act, which contained no limitation as to the amount of recovery for death at that time, was in conflict with the Wrongful Death Act which limited recovery to $10,000. This contention was rejected on the ground that the two acts are separate and distinct. In Knierim v. Izzo, 22 Ill.2d 73, the plaintiff tried to maintain an action against tavern operators and owners of tavern premises under the Wrongful Death Act where the limitation on recovery had been raised to $30,000 rather than under the Dram Shop Act which had been amended and recovery limited to $20,000. We stated in Knierim "* * * that the two acts are separate and distinct and that the nature and amount of damages provided for in the Liquor Control Act are not to be limited * * * or expanded * * * by the provisions of the Wrongful Death Act." 22 Ill.2d 73, 79.

While no case has heretofore reached this court where it has been argued that the limitation on recovery in the Wrongful Death Act should be applied to a recovery for death under the Scaffold Act, the issue was raised and decided in Mitseff v. Acme Steel Company, (N.D. Ill. 1962), 208 F. Supp. 805. The court analyzed the language used in providing a cause of action for death under the Mines and Mining Act and that used in the Scaffold Act and concluded, "The only reasonable inference is that the Scaffolding Act was copied from the Mines and Miners Act but that the limitation on the amount of recovery contained in the earlier law [Mines and Mining Act] was omitted. This omission must be presumed to have been intended." (208 F. Supp. 805, 807.) Furthermore, while the precise point ...


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