APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Plaintiff's intestate died on March 6, 1960 as a result of injuries incurred in a collision between an automobile and one of defendant's trains. Plaintiff, Mary Butler as administratrix of the estate of William Butler, deceased, brought suit in the circuit court of Cook County under the Wrongful Death Act against defendant Chicago Transit Authority. The jury returned a verdict for the plaintiff in the amount of $125,000. Plaintiff's motion to amend the ad damnum to $125,000 was denied and judgment was entered for the plaintiff for $30,000 in accordance with the limitation of the Wrongful Death Act, (Ill. Rev. Stat. 1965, chap. 70, par. 2,). Plaintiff has appealed directly to this court challenging the constitutionality of the limitation of recovery contained in the Act and defendant has cross-appealed.
We first consider the legal issue raised by the appeal. Plaintiff argues that the limitation of recovery effects an unreasonable and arbitrary classification of persons entitled to recover under the Act without promoting any purpose of the statute and therefore deprives plaintiff of rights under both the Federal and Illinois constitutions.
This is not the first attack upon limitations on recovery for wrongful death. However, this case casts the issue in a somewhat different form. The plaintiffs in Hall v. Gillins, 13 Ill.2d 26, sought to establish a common-law right of action for wrongful death unaffected by the statutory limitations of the Wrongful Death Act. The court, however, refused either to invalidate the Wrongful Death Act or judicially recognize a new remedy.
The plaintiff here seeks to distinguish Hall v. Gillins on the ground that the suit there was a common-law action rather than one under the Wrongful Death Act; however the thrust of the argument there was the same as plaintiffs here. As the court said: (13 Ill.2d at 29) "We are asked to hold that the remedy that the legislature has provided is invalid because it is inadequate, or alternatively to overturn the old common-law rule and establish a new common-law remedy.
"In our opinion the constitutional question is not formidable when it is considered in the context of the situation that existed when the statute was originally enacted. At that time no action whatsoever was permitted for a wrongful death. The legislature took away no right when it enacted the statute. It created both the right and the remedy, and we think that its power to limit the maximum recovery in the action that it created can not be questioned. The fact that most States place no limit upon the amount recoverable, or that the legislative limit may seem unduly low when contrasted with recoveries in other actions, does not affect the power of the legislature, or the validity of its action.
"The adequacy of the remedy that the legislature has provided, however, does have a bearing when we are asked, as a common-law court, to review the remedies available and to determine whether or not a new one should be recognized."
Subsequently, in LiPetri v. Turner Construction Co., 36 Ill.2d 597, we recognized the cogency of the criticism of the limitation of recovery contained in the Wrongful Death Act. However we did not abandon the position taken in Hall v. Gillins that the Wrongful Death Act was a proper exercise of legislative power.
In rejecting the suggestion that we recognize a common-law right to recover for wrongful death, the court stated in Hall v. Gillins, 13 Ill.2d 26, 31-32:
"We come then to the final point of difference, the statutory limit upon the amount recoverable. It is here that the plaintiff's argument presses most strongly upon us, for in most of the States there is no arbitrary limit upon the amount recoverable in a wrongful death action, and it is common knowledge that larger damages are often recovered for injuries than are permitted under our statute when the same wrongful conduct of the defendant has resulted in death. On the other hand, the adequacy of the monetary limit has been a source of constant legislative concern, particularly in recent years. The original limitation of $5000 upon the amount of recovery was increased to $10,000 in 1903 (Laws of 1903, p. 217); to $15,000 in 1947 (Laws of 1947, p. 1094); to $20,000 in 1951 (Laws of 1951, p. 393); to $25,000 in 1955 (Laws of 1955, p. 2006) and to $30,000 in 1957. Laws of 1957, p. 1939.
"Under these circumstances we are of the opinion that the differences between the action sought to be maintained and the action that is available under the statute are not sufficiently significant to warrant us in recognizing a new remedy. The point of greatest concern has been the subject of frequent legislative attention. Further legislative action appears likely, and the likelihood of legislative action has always militated against judicial change."
The legislative change we anticipated resulted in a recent enactment removing all limitations on future death actions but specifically retaining the prior limitations as to death occurring prior to the effective date of the Act. (H.B. 626, 1967 Laws, Ill. Leg. Ser. p. 2316.) We believe that in light of this legislation it would be improper to recognize a new right of action, and we are convinced that the prior legislative remedy was nondiscriminatory in that it treated all members of the same class equally. Hansen v. Raleigh, 391 Ill. 536.
We therefore adhere to the view expressed in Hall v. Gillins that the legislative power to limit the maximum recovery for a right of action they created cannot be questioned. The trial court was correct in limiting recovery to $30,000.
We must next consider the issues raised by the cross-appeal. The defendant contends that there was no evidence of negligence, that plaintiffs' intestate was contributorily negligent as a matter of law, and that the verdict was against the manifest weight of the evidence. Defendant also alleges error in the giving of an ...