APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
SULLIVAN, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Defendant, Metropolitan Sanitary District of Greater Chicago (District), brings this permissive interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) from an order of the trial court denying both its motion to dismiss and its motion for summary judgment. The appeal presents the question:
"Can a wrongful death action be brought by an administrator if the decedent would have been barred by the two year personal injury statute of limitations from maintaining a personal injury suit immediately prior to his death?"
On April 2, 1976, plaintiff, widow and administrator of the estate of Richard P. Lambert, Jr., filed a wrongful death action against the District and the Village of Summit. In its application for leave to appeal, the District summarized the allegations of the complaint as follows: that in 1951 and 1952, the decedent was the mayor of the Village of Summit; that at that time a controversy existed between Summit and neighboring communities and the District concerning the District's operation of sludge lagoons on its property in the area; that in 1951 and 1952, the decedent's duties as mayor included inspection of the lagoons and adjacent areas, buildings and structures and obtaining samples of the sludge for testing; that the decedent suffered a lung infection as a proximate result of the careless, negligent and improper operation of the sludge lagoons by the District; that as a result of these acts in 1951 and 1952, the decedent died on January 27, 1975; and that the decedent left as his survivors his widow and a daughter.
On April 23, 1976, the District filed a motion to dismiss the complaint on the ground that the administrator was barred by section one of the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, pars. 1, 2) because an action for personal injuries, on the part of the decedent prior to his death, would have been barred by the applicable two-year statute of limitations. On July 15, 1976, the trial court denied this motion "without prejudice" because, in its opinion, the statute of limitations in a wrongful-death action does not begin to run until the date of the decedent's death. Subsequently, on December 12, 1979, the District filed a motion to dismiss on the further ground that at the time of the alleged injury to the decedent, the defense of governmental immunity was still available to the District in actions sounding in tort. This motion to dismiss was merged into a motion for summary judgment which incorporated depositions showing that Lambert knew and believed from February or March, 1953, to the date of his death that his injuries might have been caused by the occurrences alleged in the complaint. In her reply to the District's motion for summary judgment, plaintiff admitted, for purposes of the motion, that from approximately March 1953 the decedent was aware that the incidents in question could have been the cause of his lung condition which resulted in his death in January 1975. The trial court then entered the order from which this interlocutory appeal is taken, and we allowed the District's application for leave to appeal.
Section one of the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 1) provides:
"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." (Emphasis added.)
The act also provides that every such action shall be commenced within two years after the death of such person. (Ill. Rev. Stat. 1975, ch. 70, par. 2.) Under the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, pars. 1 through 12a and 13 through 27), actions for damages for an injury to the person shall be commenced within two years after the cause of action accrued. Thus, the first question presented is whether the expiration, in the decedent's lifetime, of the limitation period applicable to his action for personal injuries will defeat an action under the Wrongful Death Act for his death resulting from the injuries.
The language of section one of the Wrongful Death Act has been construed in several Illinois Supreme Court cases. In Mooney v. City of Chicago (1909), 239 Ill. 414, 88 N.E. 194, the court stated:
"One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death." (Emphasis added.) 239 Ill. 414, 423.)
In that case, the decedent had been injured on May 5, 1903. After the accident, he executed an instrument of release in satisfaction for the damages resulting from the accident, acknowledging full satisfaction of all claims against his employer on account of the injuries sustained. His employer made the payments specified in the release. The decedent died on May 23, 1903. The supreme court stated that if the decedent had released the cause of action, the Wrongful Death Act did not confer upon the administrator any right to sue and held that an instruction was erroneous in ignoring the affirmative defense of release.
Similarly, in Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 30 N.E.2d 14, the court stated:
"[T]he liability there created [by section one of the Wrongful Death Act] depends upon the condition that the deceased, at the time of his death, had he continued to live, would have had a right of action against the same person or persons for the injuries sustained. If the deceased had no right of action at the time of his death, the personal representative has none under the Injuries Act." (Emphasis added.) 374 Ill. 506, 513-14.)
In Biddy, the plaintiff had brought an action under our Injuries Act (also known as the Wrongful Death Act) and alleged that negligence of the defendants in the operation of an airplane was the cause of the decedent's death. The decedent and his employer had elected to be bound by the Workmen's Compensation Act of the State of Michigan. Under that act, the decedent, had he lived, would have been required to elect whether he would demand compensation from his employer or sue the defendants in an action at law for damages. The court stated:
"Had he [decedent] survived the accident and made the election to accept compensation and later died from the injuries, the plaintiff could not now maintain this action, for at the time of her intestate's death he had no ...