189 N.E. 80 | Ill. | 1934
On September 3, 1928, A.T. Holden, late of Macon county, was killed in an automobile accident claimed in this suit to have been caused by the negligence of Jack Schley, Frank Gilhaus and F.A. Pugsley, hereinafter referred to as the defendants. The plaintiff in error, as administratrix of his estate, started this action in trespass on the case by præcipe on August 6, 1929, within one year after the *546 death of the deceased. Summons was issued the same day and served on all of the defendants before the 13th of August. The declaration was filed on September 24, 1929.
The declaration consisted of three counts, the first of which alleges that the accident happened "while plaintiff's intestate with all due care and caution was riding in a certain motor vehicle," etc. The second count alleges the accident to have happened while the plaintiff's intestate was riding in a certain motor vehicle which "one Bettie Holden was then and there driving with due care and caution for the safety of plaintiff's intestate," and which further alleges that the accident happened while "the automobile in which plaintiff's intestate was riding was being operated with due care and caution for the safety of the passengers, as aforesaid, and while the plaintiff's intestate was in the exercise of due care and caution for his own safety." The third count alleges that the accident happened while the automobile in which the deceased was riding was being driven by one Bettie Holden, who was then and there driving the same with all due care and caution for the safety of plaintiff's intestate and for her own safety and the safety of other passengers, and further alleges the accident to have happened "while the driver of the automobile in which plaintiff's intestate was riding was, at and before the time of the collision hereinafter referred to, driving said automobile with due care and caution for the safety of said driver and for the safety of the other passengers in said car and while plaintiff's intestate was exercising due care and caution for his own safety." Each count alleges that the action was commenced by præcipe and summons within one year after the death of the deceased, and that the deceased left surviving him Lucinda Holden, his widow, and Charles Holden, his son and next of kin, as his only surviving beneficiaries.
General and special demurrers were interposed to the declaration upon the theory that it was defective in not *547 alleging that the next of kin of the deceased, who would benefit by the judgment in the case, were in the exercise of due care for the safety of the deceased at the time and place of the accident. After these demurrers were sustained, and after the expiration of one year from the death of the deceased, the plaintiff amended each count of the declaration by adding an allegation to the effect that the death of the deceased was not in any manner caused or contributed to by any failure to exercise reasonable care on the part of any of the beneficiaries or next of kin. The trial court held that the amendment to the declaration caused it to state a cause of action for the first time more than one year after the death of the deceased and sustained demurrers to it. The plaintiff abided by her declaration and carried the case by appeal to the Appellate Court for the Third District, where the judgment was affirmed. The case is before us on certiorari to that court.
It is contended by plaintiff in error that the original declaration stated a good cause of action, or, upon its worst construction, stated a cause of action defectively, and furthermore, that the amendment of 1929 to section 39 of the Practice act (Smith's Stat. 1931, chap. 110, p. 2198,) caused the amendment to relate back to the original declaration and cured any possible defect in it. We find it unnecessary to pass on the second point.
It was held by the trial and Appellate Court that it was necessary in this case that the plaintiff allege and prove that the next of kin or beneficiaries were free from negligence which contributed to the injury, and the same proposition is argued here upon the authority of Hazel v. Hoopeston-DanvilleBus Co.
Inasmuch as the original declaration stated a good cause of action it is unnecessary for us to pass on the other questions raised.
The judgments of the Appellate Court and circuit court will be reversed and the cause remanded to the circuit court of Macon county.
Reversed and remanded.