| Ill. | Apr 15, 1857
The first, and altogether the most important question here is, whether the case is within the statute, and can he maintained. The person for whose death this action is brought was a child, four years of age, and the action is brought by the father of the child, as administrator. The first section of the statute under which this action is brought, is as follows:
“ That whenever the death of a person shall be caused hy 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.”
This is a new cause of action given hy this statute, and unknown to the common law, ana should not he extended beyond the fair import of the language used; hut this it would he difficult to do, for the language is very broad and comprehensive, embracing, in direct and positive terms, all cases, where, if death had not ensued, the injured party could have maintained an action for the injury. This woxtld seem-to leave no room for construction, hut refers us at once to the inquiry, whether an action could have been maintained by the child, for the injury, had he survived it. The act \ays, “ then, and in every such case,” the action shall be maintained. To give a further limitation than this would be, not to construe, the statute, hut to expunge or disregard a portion of it.
So much for the first section of the act, and the clear and positive terms in which it is expressed, and it remains to be considered whether the legislature intended, by the provisions of the second section of the act, to create a further limitation. The second section provides that the action shall be brought in the names of the personal representatives of the deceased person, and further provides that the amount recovered “ shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate.” This, it is contended, impliedly limits the action to cases where the person leaves a widow and next of kin; in other words, where the deceased was, at the time of his death, a married man, for the presumption of law is, that every deceased person leaves heirs who are capable of inheriting, or next of kin. Harvey v. Thornton, 14 Ill. R. 217.
This entire act, like all others, must be read and considered together, in order to arrive at the true meaning of the legislature, but it is of primary importance to see the office which each section was designed to perform, or the particular purpose designed to be accomplished by each. In the framing of statutes, sometimes each section is designed to accomplish a distinct and independent purpose; and sometimes the provisions of one section are intended to bear upon the subject matter of, and to control or influence the construction of another. In the former case, where each section or clause is framed for the purpose of performing a distinct and independent office, it is not intended by the legislature that it shall be controlled or qualified by another section or clause, the sole object of which was to effect a different, distinct and independent purpose. Such was evidently the case here. The sole object of the first section was to create the right of action, and to specify in what cases, or for what wrongs, it might be brought. This office, and this alone, is performed by the first section, in a clear and unambiguous manner. The purposes of the second section are two, but distinct from and entirely independent of the first section, which, so far as its object was concerned, was complete; that is, it had created a right of action, and specified in what cases, or for what wrongs it might be brought. The two purposes, distinct from this, to accomplish which ^the second section was framed, were, first, to determine by whom or in whose name the action should be brought; and second, to declare for whose benefit the action should be brought, or how the money recovered should be disposed of or "distributed. The first purpose, that is, declaring by whom the action shall be brought, is declared in such a way as to leave no doubt, and to create no difficulty. The action is to be brought by the personal representatives ; that ■is, by the executors or administrators. But the difficulty arises out of the language used, when providing for the second object designed to be accomplished by the second section; that is, for whose benefit the suit is to be • brought, or how the money recovered shall be disposed of. The expression is, that it shall be for the benefit of the widow and next of kin of the deceased, in the same proportion as is provided by law for the distribution of personal estate of intestates. How, was it the intention of the legislature, in the use of this expression, to limit the provisions of the first section so as to afford the remedy only in those cases where the deceased left a widow ? We think the sole object of this provision was to provide for the disposition of the judgment to be recovered in those cases, while the first section had already given a cause of action. The legislature intended that the money recovered' should not be treated as a part of the estate of the deceased. They designed to exclude creditors from any benefit of it, and to prevent its passing by virtue of any provisions of the will of the deceased. The personal representative brings the action, not in right of the estate, but as trustee for those who had a more or less direct pecuniary interest in the continuance of the ‘life of the deceased, and who had some claims, at least, upon his or her natural love and affection. The legislature intended that the fruits of the judgment should be distributed among those to whom his personal estate would descend, after the payment of debts, and in the absence of a will. And this intention should not be defeated because they have not used more circumlocution in defining the cestui que trusts who are to receive the fruits of the judgment. Had the words widow and next of kin been connected by the conjunction or instead of cmd, still all cases would not have been provided for according to the manifest intent of the legislature, for then the widow, where one is left, would have claimed the whole, whereas it is intended to divide it, in such a case, between the widow and next of kin, according to- our statute of descents. To have expressed the full meaning of the legislature, and left nothing to implication, it would have been necessary to have added after the expression “ next of kin” the words, “ or, in case the deceased leaves no widow, then for the exclusive benefit of the next of kin.” The courts are constantly called upon to supply, by intendment, this absence of circumlocution in acts of the legislature, in order to give effect to their- manifest intention. Had it been the design of the legislature to limit the action to cases where the deceased leaves a widow, they would certainly have said so in the appropriate place, in the first section of the act, instead of giving the action in all cases where the injured party, if death had not ensued, could have maintained an action for the injury. The words “ then and in all such cases” are very emphatic, and exclude the idea of a limitation.
We can see nothing in the policy of the law which would lead to the conclusion that the legislature intended to afford no redress to orphan children, where both parents are killed, as has sometimes happened, while a remedy would have been afforded them had the father alone been killed, and the mother left to assist them. The pecuniary loss in the former case would certainly be greater to them than in the latter. Other cases of dependence and deprivation of support and maintenance, as between parent and child, or other relation, where the justice of the provisions of the act is scarcely less manifest than where the relation of husband and wife existed. But this is not all. Should we adopt the construction contended for, we should have to hold that no remedy is given to the husband for the loss of the wife. We cannot believe that the legislative mind was actuated by such narrow and limited intentions when framing the first section of the act, which alone gives the cause of action. If the cause of action is, in fact, given by the first section, which cannot, in truth, be denied, even a failure to provide for the disposition of the fruits of the judgment to be recovered could hardly be allowed to repeal any portion of the first section. If we expect to find all of the acts of the legislature perfect and harmonious, devoid of all ambiguity, or even incongruity, we shall be sadly disappointed. It is no new task imposed upon the courts to seek to find the meaning of the legislature in laws, some of the provisions of which are even inconsistent with, and contradictory to, each other. Such, however, cannot in strictness be said to be the case here. The most that can be said against this is, that it is incomplete, in the second section, in describing the beneficiaries of the judgment to be recovered, while there is neither ambiguity, uncertainty or omission in the first section, which gives the cause of action and specifies in what cases it may be maintained. In reading each section we must bear in mind its object and office, and give effect to its provisions accordingly. We think that this case was within both the language and policy of the law, and it is our duty to give effect to the intention of the legislature, thus plainly declared.
It remains briefly to examine the other instructions asked of the court, the first having been already disposed of.
The qualification to the sixth instruction presents the next ground of exception, and this, it is admitted, is technically correct, but it is objected to, as tending to mislead the jury. The rule is correctly stated that the plaintiff’s damages could only be estimated for the pecuniary loss suffered by the death of the deceased, without taking into the account the mental anguish or bereaved affections, and that the jury must make their estimate of such pecuniary damage from the facts proved, and that it was not necessary that any witness should have expressed an opinion of the amount of such pecuniary loss. In this, as in all other cases, it was proper for the jury to exercise their own judgment upon the facts in proof, by connecting them with their own knowledge and experience, which they are supposed to possess, in common with the generality of mankind. It is only where witnesses are supposed to possess a skill and judgment superior to the generality of mankind, upon a particular subject, that their opinions are allowed to go to the jury, for the purpose of supplying the supposed want of experience and judgment of the jury. Where such aids are not attainable, or are not produced, then the jury must be guided by their- own best judgment, applied to the facts in proof, for the purpose of arriving at a conclusion.
The qualification given to the seventh instruction asked for the city was proper. It told the jury that they might presume notice to the city of the defect in the tank, from long and unreasonable delay in making the repairs, and find as if express notice of the defect had been proved. Ignorance of the defect for such a length of time as is here specified would be as much negligence on the part of the city as neglecting to repair after the actual notice.
The eighth instruction, which was refused, was this:
“If the jury believe that the tank in question was reasonably safe and seciu-e for all such persons as ordinarily make-use of the streets of a cit^r, the city is not liable for an injury resulting from its insufficiency to prevent or guard against an extraordinary occurrence or accident.”
This instruction was asked, and, if given, would have been understood in reference to the particular facts of this case, and would have been equivalent to instructing the jury that tins child had no business in the streets, and that the city was not liable for negligently leaving the tank in such a condition as to endanger the lives of such children in the streets. Such, we apprehend, is not the law, and the court properly declined so to instruct the jury. A large majority of children living in cities depend upon the daily labor of both parents for subsistence, and these parents are unable to employ nurses, 'who may keep a constant and vigilant eye momentarily upon their children; and we cannot hold, as a matter of law, that every time a child, four years of age, steps into the street unattended, the mother is guilty of such negligence as would authorize every reckless or careless driver to run over and trample it down with impunity, or as would authorize the city to expose traps and pit-falls in every corner of the streets, in which a child may be drowned or maimed. Such a rule of law ought to depopulate a city of all its laboring inhabitants. In this, as in all other cases, it must be left to the jury to determine whether the parents of the child have been guilty of negligence in suffering the child to he in the streets. On this point the court justly instructed the jury in the last instruction. The jury were there told that they must believe, from the evidence, that the defendant was guilty of negligence, which produced the injury, in not keeping the tank in repair, and also that its parents were not guilty of negligence ; and in another part of the charge they were told that the burden of proof rested on the plaintiff to show, not only negligence on the part of the city, hut also that the parents were not negligent. "We are satisfied that the court committed no error in its decision of thequestions of law which arose on the trial.
We are also asked to reverse the judgment, because the court below refused to set aside the verdict for the reason that it is not supported by the proof. Without going into a review of the evidence, it is sufficient to say that we concur in opinion with the circuit court that the evidence is sufficient to support the verdict.
The judgment of the circuit court must he affirmed.
Judgment affirmed.