Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Ben Schwartz, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1978.
Plaintiff, Stella Wilbon, administrator of the estate of Lonnie Wilbon, deceased, appealed from the judgment of the circuit court of Cook County entered upon allowance of defendants', Joseph T. Mehalic and D.F. Bast Co., Inc.'s, motion to dismiss. The appellate court reversed as to the claims of two minor plaintiffs (48 Ill. App.3d 98) and remanded the cause for further proceedings. We allowed defendants' petition for leave to appeal.
In her four-count complaint filed pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1, 2) plaintiff sought to recover damages for the wrongful death of Lonnie Wilbon, deceased, alleging that he left surviving him as his next of kin six minor children ranging in age from 17 years to 5 months. In their motion to dismiss, defendants stated that "a settlement was reached concerning the death of the decedent" with individuals residing in Arkansas, including, presumably, the four older children "claiming as next of kin." Plaintiff asserts in her brief that the only claim made on her behalf is for burial expenses which she had paid and that the only beneficiaries whose claims remain undisposed of are the two minor children who, as of the date of the decedent's death, were respectively two years and five months of age. The circuit court dismissed the action with prejudice on the ground that having been filed three years and four months after the decedent's death, it was barred by section 2 of the Wrongful Death Act, which in pertinent part provided that "Every such action shall be commenced within 2 years after the death of such person" (Ill. Rev. Stat. 1971, ch. 70, par. 2(c)). In reversing the judgment the appellate court held that it was the legislative intent to extend the time to bring an action under the Wrongful Death Act for beneficiaries under the age of 18 as provided in section 21 of the Limitations Act (Ill. Rev. Stat. 1971, ch. 83, par. 22).
Citing numerous authorities, defendants contend that an action for wrongful death is a statutory cause of action unknown to the common law and that the two-year limitation is a condition of the existence of the statutorily created right. They argue that "there is no reasonably debatable issue before the court. Forty years of Supreme Court precedent establishes that the two year limitation imposed by the Wrongful Death Act is a condition of the existence of a statutorily created right a right which here has ceased to exist."
Plaintiff contends that the issue presented in this appeal has become moot for the reason that effective October 1, 1977, the Wrongful Death Act was amended to provide:
"Every such action shall be commenced within 2 years after the death * * *. However, if a person entitled to recover benefits under this Act, is, at the time the cause of action accrued, within the age of 18 years, he or she may cause such action to be brought within 2 years after attainment of the age of 18." (Ill. Rev. Stat. 1977, ch. 70, par. 2.)
She argues that the Act is a remedial statute and the amendment is applicable to this case. Defendants respond that the amendment is prospective in effect, that at the time of the adoption of the amendment the right of action no longer existed, and that "Application of the amendment to such expired right would * * * present grave constitutional implications." They argue that "retroactive application would be violative of defendants' constitutional rights" for the reason that their vested right in the statute as it previously existed "simply may not be vitiated." We need not further discuss these contentions for the reason that if the two-year limitation contained in the Wrongful Death Act was applicable, the claims of the minor children were barred prior to the effective date of the amendment and its enactment would not extend the time for filing them. Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill.2d 161.
Although defendants are correct in their statement that in earlier opinions this court has said that the right to recovery for wrongful death did not exist at common law, that it is a creature of statute, and that the limitations provision in the Wrongful Death Act is a condition precedent to the bringing of the action, it does not necessarily follow that the claims of these minor plaintiffs are barred. The origin of the concept that there was no action at common law for the death of a human being is found in the report of the nisi prius case of Baker v. Bolton (1808), 1 Camp. 493, 170 Eng. Rep. 1033. In 3 W. Holdsworth, History of English Law 336 (3d ed. 1927) the rule as laid down by Lord Ellenborough in Baker v. Bolton is described as "obviously unjust, * * * technically unsound * * * and based upon a misreading of legal history." The rule has been criticized in earlier opinions of this court. (Saunders v. Schultz (1960), 20 Ill.2d 301, 306; Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill.2d 326, 333.) In Gaudette v. Webb (1972), 362 Mass. 60, 284 N.E.2d 222, the plaintiff was the administrator of her husband's estate and filed an action in wrongful death for the benefit of her minor children after the statute of limitations in the wrongful death act had expired. The superior court, finding no exception for minors applicable in the wrongful death act, dismissed the action. After reviewing the history of wrongful death actions, the Supreme Judicial Court concluded:
"[W]e are convinced that the law in this Commonwealth has also evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin, and we so hold. * * *
Consequently, our wrongful death statutes will no longer be regarded as `creating the right' to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant's culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right. We further hold that statutes limiting the period for bringing actions for death are to be construed in the same manner as the limitations contained in G.L.c. 260, the general statute of limitations, and that in appropriate cases they may be tolled by the various provisions of G.L.c. 260." 362 Mass. 60, 71, 284 N.E.2d 222, 229.
In Moragne v. States Marine Lines, Inc. (1970), 398 U.S. 375, 380, 26 L.Ed.2d 339, 345, 90 S.Ct. 1772, 1777, Mr. Justice Harlan, after noting that in Mobile Life Insurance Co. v. Brame (1878), 95 U.S. 754, 24 L.Ed. 580, the court "had held that in American common law, as in English, `no civil action lies for an injury which results in * * * death'" said:
"One would expect, upon an inquiry into the sources of the common-law rule, to find a clear and compelling justification for what seems a striking departure from the result dictated by elementary principles in the law of remedies. Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be non-actionable simply because it was serious enough to cause death. On the contrary, that rule has been criticized ever since its inception, and described in such terms as `barbarous.' E.g., Osborn v. Gillett, L.R. 8 Ex. 88, 94 (1873) (Lord Bramwell, dissenting); F. Pollock, Law of Torts 55 (Landon ed. 1951); 3 W. Holdsworth, History of English Law 676-677 (3d ed. 1927). Because the primary duty already exists, the decision whether to allow recovery for violations causing death is entirely a remedial matter. It is true that the harms to be assuaged are not identical in the two cases: in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him usually spouse and children seek to recover for their total loss of one on whom they depended. This difference, however, even when coupled with the practical difficulties of defining the class of beneficiaries who may recover for death, does not seem to account for the law's refusal to recognize a wrongful killing as an actionable tort. One expects, therefore, to find a persuasive, independent justification for this apparent legal anomaly.
Legal historians have concluded that the sole substantial basis for the rule at common law is a feature of the early English law that did not survive into this century the felony-merger doctrine. See Pollock, supra, at 52-57; Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q. Rev. 431 (1916). According to this doctrine, the common law did not allow civil recovery for an act that constituted both a tort and a felony. The tort was treated as less important than the offense against the Crown, and was merged into, or pre-empted by, the felony. Smith v. Sykes, 1 Freem. 224, 89 Eng. Rep. 160 (K.B. 1677); Higgins v. Butcher, Yel. 89, 80 Eng. Rep. 61 (K.B. 1606). The doctrine found practical justification in the fact that the punishment for the felony was the death of the felon and the forfeiture of his property to the Crown; thus, after the crime had been punished, nothing remained of the felon or his property on which to base a civil action. Since all intentional or negligent homicide was felonious, there could be no civil suit for wrongful death.
The first explicit statement of the common-law rule against recovery for wrongful death came in the opinion of Lord Ellenborough, sitting at nisi prius, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808). That opinion did not cite authority, or give supporting reasoning, or refer to the felony-merger doctrine in announcing that `[i]n a civil Court, the death of a human being could not be complained of as an injury.' Ibid. Nor had the felony-merger doctrine seemingly been cited as the basis for the denial of recovery in any of the other reported wrongful-death cases since the earliest ones, in the 17th century. E.g., Smith v. Sykes, supra; Higgins v. Butcher, supra. However, it seems clear from those first cases that the rule of Baker v. Bolton did derive from the felony-merger doctrine, and that there was no other ground on which it might be supported even at the time of its inception. The House of Lords in 1916 confirmed this historical derivation, and held that although the felony-merger doctrine was no longer part of the law, the rule against recovery for wrongful death should continue except as modified by statute. Admiralty Commissioners v. S.S. Amerika,
A.C. 38. Lord Parker's opinion acknowledged that the rule was `anomalous * * * to the scientific jurist,' but concluded that because it had once found justification in the doctrine that `the trespass was drowned in the felony,' it should continue as a rule `explicable on historical grounds' even after the disappearance of that justification. Id., at 44, 50; see 3 W. Holdsworth, History of English Law 676-677 (3d ed. 1927). Lord Sumner agreed, relying in part on the fact that this Court had adopted the English rule in Brame. Although conceding the force of Lord Bramwell's dissent in Osborn v. Gillett, L.R. 8 Ex. 88, 93 (1873), against the rule, Lord Parker stated that it was not `any part of the ...