{
  "id": 5221701,
  "name": "West Chicago Street Railroad Co. v. Abram E. Mabie, Adm'r",
  "name_abbreviation": "West Chicago Street Railroad v. Mabie",
  "decision_date": "1898-05-31",
  "docket_number": "",
  "first_page": "176",
  "last_page": "179",
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      "cite": "77 Ill. App. 176"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
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    {
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    {
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    {
      "cite": "51 Ill. App. 307",
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    {
      "cite": "68 Ill. App. 626",
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  "last_updated": "2023-07-14T16:36:43.320990+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "West Chicago Street Railroad Co. v. Abram E. Mabie, Adm\u2019r."
    ],
    "opinions": [
      {
        "text": "Mr. Justioe Horton\ndelivered the opinion of the court.\nThis suit was brought by the appellee as administrator of the estate of Lizzie Knuth, a child between three and four years of age, to recover damages for her death, caused by a grip-car owned and operated by appellant.\nThe verdict and judgment are for the sum of $4,000. The deceased was less than four years old at the time of her death. At common law no right of action accrued to an administrator in such a case. There can be no recovery except under and by virtue of the statute of this State, which limits the recovery to \u201c the pecuniary injuries resulting from such death to the wife and next of kin.\u201d A verdict can not be sustained for anything other than or beyond the \u201c pecuniary injury.\u201d There can be no recovery upon the basis of a parent\u2019s love. That is priceless. There may be the keenest anguish without pecuniary loss. The evidence will not sustain so large a verdict, there being no evidence of any special pecuniary injury. W. C. St. R. R. Co. v. Scanlon, 68 Ill. App. 626; N. C. St. R. R. Co. v. Wrixon, 51 Ill. App. 307.\nAs this case must be reversed and remanded for another trial, for reasons other than the amount of the verdict, we do not express any opinion, further than as above, as to the amount of the judgment, limited, as it must be, to \u201cpecuniary injury.\u201d\nThis is an action under the statute above referred to (Ch. 70, Sec. 26), and is \u201cfor the exclusive benefit of the widow and next of kin.\u201d An averment is, therefore, necessary in the declaration showing the facts as required by the statute. The only averments the declaration contains on the subject are the following:\n\u201c And plaintiff avers that he, as the administrator of the said Lizzie Knuth, by means of the premises was forced to pay, lay out, expend and become liable for the payment of large sums of money, to wit, the sum of one thousand dollars ($1,000), in and about a proper, decent and appropriate burial of the said Lizzie Knuth; and as the administrator of the said Lizzie Knuth he has, by means of the premises, sustained and suffered great loss, injury and damage, to wit, the sum of five thousand dollars ($5,000).\n' \u201c Wherefore, in accordance with the statutes in such cases made and provided an action has accrued to the plaintiff as administrator of the goods, chattels and effects of the said Lizzie Knuth, for the exclusive benefit of the father and the mother and the next of kin of the said Lizzie Knuth, to demand for, of and from the said defendant the said several sums of money above demanded in manner and form as is hereinabove alleged, and therefore he brings his suit.\u201d\nNowhere in the declaration is there any averment that the deceased in fact left her surviving any next of kin. Unless there be next of kin, there is no cause of action. In L. S. & M. S. Ry. Co. v. Hessions, 150 Ill. 546, 556, it is said that \u201c It is the settled law that the fact of survivorship of a widow or next of kin is an essential element of a cause of action, and it is therefore indispensable that it should be alleged and proved. C. R. I. & P. Ry. Co. v. Morris, 26 Ill. 400; Quincy Coal Co. v. Hood, 77 Id. 68; Safford v. Drew, 3 Duer, 627.\u201d\nThe language of the declaration in this case is simply and only to the effect that under the statute a cause of action has accrued to the administrator for the benefit of, but without stating definitely that there are any next of kin. The declaration should state that there are next of kin, and who they are and what the relationship is.\n\u2022 On behalf of appellee it is urged that this defect is cured by verdict. \u201c The rule is, if the declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.\u201d Bowman v. The People, 114 Ill. 474, 477.\nIt is not \u201c implied in or inferable from \u201d the allegations that the deceased lost her life by reason of the negligence of appellant, that she left her surviving any next of kin, a \u201c substantial fact which is essential to a right of action,\u201d an \u201c essential element of a cause of-action.\u201d\nIn the case of Quincy Coal Co. v. Hood, Adm\u2019r, 77 Ill. 68, which was an action under this same statute, the declaration did aver that the deceased left him surviving next of kin, and stated who it was, viz., the father. Upon the trial the plaintiff was permitted to show that there were next of kin other than the one named in the declaration, viz., a mother and brothers and sisters. This was held to be erroneous and not cured by verdict.\nThe judgment of the Circuit Court is reversed and the cause remanded.",
        "type": "majority",
        "author": "Mr. Justioe Horton"
      }
    ],
    "attorneys": [
      "Alexander Sullivan, attorney for appellant; E. J. McArdle, of counsel.",
      "John F. Waters, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "West Chicago Street Railroad Co. v. Abram E. Mabie, Adm\u2019r.\n1. Damages\u2014Death from Negligent Act\u2014Where the Action IAes.\u2014 At common law no right of action accrued to an administrator on account of the death of his intestate from the negligence- of another. There can be no recovery except under and by virtue of the statute, and that limits the recovery to the p\u00e9cuniary injuries resulting from such death to the wife and next of kin. A verdict can not be sustained for. anything more than the pecuniary injury.\n3. Pleadings\u2014In Actions for Damages\u2014Death from Negligent Act \u2014Allegations of Survivorship.\u2014The fact of survivorship of a widow or next of kin is an essential element of a cause of action, and it is indispensable that it should be alleged and proved.\n3\u2019 Same\u2014Defects Cured by Verdict.\u2014If the declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in, or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.\n4, Same\u2014Defects Not Cured by Verdict.\u2014In an action for damages resulting from the death of a person by the negligent act of another, the fact the deceased left surviving next of kin is a substantial and material allegation, and is essential to the right of action. Its omission is not cured by verdict.\nTrespass on the Case.\u2014Death from negligent act. Trial in the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.\nHeard in the Branch Appellate Court of the First District at the March term, 1898.\nReversed and remanded.\nOpinion filed May 31, 1898.\nAlexander Sullivan, attorney for appellant; E. J. McArdle, of counsel.\nJohn F. Waters, attorney for appellee."
  },
  "file_name": "0176-01",
  "first_page_order": 178,
  "last_page_order": 181
}
