APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Julie Praznik (plaintiff), administrator of the estates of Donald A. Dobbs and Antoinette E. Dobbs (decedents), brought an action against Sport Aero, Inc. (Sport Aero), and Edgar Fey, Jr., administrator of the estate of Ronald J. Fey (defendants), seeking damages for the wrongful deaths of decedents. Defendant Fey raised the affirmative defense that plaintiff failed to commence suit within the two-year period provided in the wrongful death statute, and both defendants affirmatively pleaded the Illinois aircraft guest act (guest act) (Ill. Rev. Stat. 1969, ch. 15 1/2, par. 22.83) in their defense. The circuit court struck these defenses and entered orders certifying these interlocutory orders for review, pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1969, ch. 110A, par. 308). We allowed leave to appeal. *fn1 This appeal involves three basic issues:
(1) did the circuit court err in striking defendant Fey's affirmative defense which alleged plaintiff's failure to commence her action against Fey within the two years provided in the wrongful death act; *fn2
(2) did the circuit court err in striking defendants' affirmative defense alleging that decedents were guests, thus requiring that plaintiff prove wilful and wanton misconduct so as to hold defendants liable pursuant to the guest act; and
(3) does the Federal law regulating air traffic preempt the guest act.
On March 23, 1969, decedents and Mr. and Mrs. Ronald J. Fey departed by aircraft for the Bahama Islands. They traveled in an aircraft owned by Sport Aero, a nonprofit flying club of which Ronald J. Fey was a member. The aircraft had allegedly been leased to Fey, and in the amended complaint plaintiff alleged that decedents were passengers, not guests on that aircraft. Neither the Dobbses nor Feys returned on March 29, 1969, as expected. This was the first indication that something might have happened to decedents, the Feys, and to the aircraft on which they were traveling. The last known radio communication with the aircraft was on March 23, 1969, at approximately 2203 EST, with the Crossville Tennessee Flight Service Station. It was not until November of 1971 about two years and eight months after the alleged accident occurred *fn3 that the actual wreckage of the aircraft was discovered. The Dobbs couple left surviving minor children.
On March 29, 1971, plaintiff filed a complaint against Sport Aero, the owner of the plane, alleging that decedents had been missing since March 23, 1969, when they left for the Bahama Islands in an aircraft owned by Sport Aero and leased to Fey; that decedents were presumed to have died as a result of the crash of the Sport Aero aircraft; and that Sport Aero was liable for this crash on the theory of res ipsa loquitur, stating that the crash would not have occurred in the absence of negligence if defendants had exercised reasonable care in the maintenance and operation of the aircraft. Sport Aero denied liability and alleged no knowledge of decedents' deaths or of the alleged crash.
On May 5, 1972, about six months after the discovery of the crash, plaintiff filed an amended complaint against Sport Aero and Edgar Fey, Jr., administrator of the estate of Ronald J. Fey. Count I of the amended complaint held defendants liable on a theory of res ipsa loquitur; and Count II alleged that Ronald Fey was the agent of Sport Aero and alleged specific acts of negligence on the part of each defendant. Count III, filed over a year later, alleged that Ronald Fey was the agent of Sport Aero, the latter being negligent in allowing Fey to take control of the aircraft, and alleged the negligence of Fey as the causal factor of the crash.
Defendants responded to the amended complaint denying liability and pleading the following affirmative defenses: (1) plaintiff did not commence her action against defendant Fey within the two years provided in the Illinois wrongful death statute (Ill. Rev. Stat. 1969, ch. 70, par. 2) and the one-year statute in Tennessee (T.C.A. § 28-304); and (2) that plaintiff's decedents were guests in the subject aircraft, and there can be no recovery against defendants unless it is proved defendants were guilty of wilful and wanton misconduct as required by the Illinois guest act.
Plaintiff moved to strike each of these defenses. The first defense, pleading the failure to commence suit within two years was stricken by the Honorable Ben Schwartz, who also certified that there is a substantial ground for a difference of opinion and that an immediate appeal would materially advance the ultimate termination of litigation. The second defense, pleading the guest act, was stricken by the Honorable Nicholas J. Bua, by an order holding, "* * * the act is unconstitutional in violation of plaintiff's rights to due process and equal protection of the laws granted by the Fourteenth Amendment to the United States Constitution, Article I, § 12, of the Illinois Constitution of 1970, and Article IV, § 22 of the Illinois Constitution of 1870." *fn4 The act was also found to be in violation of the supremacy and commerce clauses of the United States Constitution (U.S. Const., art. VI, cl. 2; U.S. Const., art. 1, § 8, cl. 3), and in conflict with the Federal Aviation Act (49 U.S.C. § 13.01 et seq.), which preempted control over air traffic. The trial court also certified this question for review.
In his defense, defendant Fey objected to the timeliness of plaintiff's action. Plaintiff commenced her suit against Fey more than three years after her decedents' deaths. Defendant alleged the failure to commence suit under the Illinois wrongful death act two years and the Tennessee wrongful death act one year. The circuit court struck this defense on plaintiff's motion without indicating which wrongful death act it considered to be controlling. *fn5 The Illinois wrongful death act (Ill. Rev. Stat. 1969, ch. 70, par. 2), in pertinent part, provides:
"Every such action [wrongful death] shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and the next of kin of such deceased person * * *.
Every such action shall be commenced within 2 years after the death of such person. * * *."
Plaintiff moved to strike the defense urging: (1) her cause of action did not accrue until the discovery of the aircraft wreckage pointing to the fact of, and circumstances surrounding, decedents' deaths; (2) her action was timely filed pursuant to section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 46(4)), *fn6 because Fey was an agent of Sport Aero and suit had been timely filed against Sport Aero; and (3) Illinois should accept a cause of action for wrongful death as a matter of common law, thereby tolling the period of limitations for minor children of decedents.
The circuit court allowed plaintiff's motion without specifying the ground for its rulings. In our review of the matter it is necessary to consider only plaintiff's contention that the "discovery rule" should be applied in this case.
Plaintiff argues her cause of action did not accrue until November 1971, when the wreckage of the aircraft was discovered because it was at this time that plaintiff knew with any certitude of decedents' deaths and of the circumstances surrounding their deaths. Plaintiff urges the adoption of the discovery rule in this case so ...