Rhoads v. Chicago & Alton Railroad
81 N.E. 371
Ill.
1907
Check Treatment
Mr. Justice; CarTe;r

delivered the opinion of the court:

The sole question urged on this appeal is the giving and refusal of the instructions referred to in the statement. Appellants contend that it is not the law of this State that where the next of kin are collateral kindred of the deceased and have received no pecuniary aid from him' they can only recover nominal damages for his death, and that this court has never so held. The law upon which this action is based was passed by the legislature in substantially its present form in 1853. (Hurd’s Stat. 1905, chap. 70, p. 1152.) As our statute is a copy of the New York statute of like import, it is urged that the construction placed upon it by the New York courts is authoritative and binding. This contention would have much force if the statute had been construed by the courts of last resort in that State before it was enacted here, but such was not the fact. The earliest decision cited by appellants construing the statutes as contended for by them was made in 1879. All the other decisions were of a later date. The rule is, that in adopting the statute of another State it is presumed that our General Assembly intended that it should receive the construction given it by the courts of the State from which it was adopted, previous to its adoption, unless such construction is in conflict with the spirit and policy of our laws. (ReQua v. Graham, 187 Ill. 67, and cases there cited.) The discussion as to the doctrine here under discussion in the courts of other States upon statutes similar to our own would have weight, even though handed down since this statute was enacted by our legislature, if this court had not already construed this statute.

The first case decided by this court that has any bearing on the case here under discussion is City of Chicago v. Major, 18 Ill. 349. It was there held that damages under the act can only be for pecuniary loss, and not for bereavement ; that such action is for those that have “a more or less direct pecuniary interest in the continuance of the life of the deceased.” This statute makes pecuniary loss of the widow and next of kin the sole measure of damages. (Chicago and Rock Island Railroad Co. v. Morris, 26 Ill. 400.) In commenting on this last case in Chicago and Alton Railroad Co. v. Shannon, 43 Ill. 338, we said (p. 346) : “If, then, the next of kin are collateral kindred of the deceased and have not been receiving from him pecuniary assistance, and are not in a situation to require it, it is immaterial how near the relationship may be, only nominal damages can be given, because there has been no pecuniary injury. If, on the other hand, the next of kin have been dependent on the deceased for support, in whole or in part, it is immaterial how remote the relationship may be, there has been a pecuniary loss, for which compensation under the statute must be given.” The doctrine in this case has been quoted with approval by this court in Chicago and Northwestern Railroad Co. v. Swett, 45 Ill. 197; City of Chicago v. Scholten, 75 id. 468; Quincy Coal Co. v. Hood, 77 id. 68; Rockford, Rock Island and St. Louis Railroad Co. v. Delaney, 82 id. 198; Holton v. Daly, 106 id. 131; North Chicago Street Railroad Co. v. Brodie, 156 id. 317; Chicago, Peoria and St. Louis Railroad Co. v. Woolridge, 174 id. 330.

The appellants insist that in none of these cases was the question of the right of collateral relatives to recover squarely raised except in the Brodie case, supra, and they contend that in that case, while the brother of the deceased was the surviving relative, the court decided that the intestate was shown by the evidence to be incapable of supporting himself, and that under such circumstances plaintiff could not have sustained pecuniary loss; that therefore the question here at issue did not there arise. In the Brodie case this court reviewed most of the authorities on the question in this State and manifestly sanctioned the doctrine quoted above from the Shannon case. The right of collateral kindred was not directly involved in all of these cases, but that this was understood to be the holding of this court is evident from the repeated re-assertion of it in the decisions quoted, as well as in the reference to it in Conant v. Griffin, 48 Ill. 410, Ohio and Mississippi Railway Co. v. Wangelin, 152 id. 138, Chicago and Grand Trunk Railway Co. v. Gaeinowski, 155 id. 189, Bradley v. Sattler, 156 id. 603, Baltimore and Ohio Southwestern Railway Co. v. Then, 159 id. 535, Chicago, Burlington and Quincy Railroad Co. v. Gunderson, 174 id. 495, Chicago and Eastern Illinois Railroad Co. v. Huston, 196 id. 480, Chicago and Eastern Illinois Railroad Co. v. Beaver, 199 id. 34, Raisor v. Chicago and Alton Railway Co. 215 id. 47, and United Breweries Co. v. O’Donnell, 221 id. 334. In Sutherland on Damages (vol. 4, 3d ed. sec. 1276,) that author clearly understood that to be the doctrine of this court, for, after quoting what is quoted above in the Shannon case, supra, he continues: “This reasoning is correct if -no benefit from the eventual distribution of the estate of the deceased, had he lived, is to be taken into account. Any. such benefit depends on three contingencies: that he would have increased his estate, that he would not have made a will to disinherit the widow and next of kin, and that they would survive him. These contingencies are so important as to preclude the recovery of more than nominal damages where the principal fact in favor of the plaintiff is his heirship to the decedent.” Under this authority appellants could not recover on this record, because they made 110 proof entitling them to recover except heirship and except the proof as to the gratuitous legal services of deceased to his brother- and sisters, and this proof of legal services, in our judgment, is so vague, uncertain and indefinite that on the evidence offered it could not be held that there was pecuniary loss, such as is contemplated by the statute, from the deprivation of such services.

In Law v. Grommes, 158 Ill. 492, we quoted with approval from Anderson’s Law Dictionary the following: “An expression of opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the cause, if a dictum at all, is a judicial dictum- as distinguished from a mere obiter dictum,—i. <?., an expression originating alone with the judge who writes the opinion, as an argument or illustration.” (See, also, 26 Am. & Eng. Ency. of Law,—2d ed.— 170, 171.) Without question these repeated statements of this doctrine in the decisions quoted did not originate alone with the judge who wrote them. This question was evidently fully argued in North Chicago Street Railroad Co. v. Brodie, supra, and was intended to be squarely decided. It will be noted that many of the authorities cited by appellants in their brief herein were cited in that case, including Railroad Co. v. Barron, 5 Wall. 90, relied upon so insistently by the appellants here. With the Barron case in mind, and the other authorities cited, manifestly the expressions of this court on the subject under discussion in the Brodie case, supra, are something more than mere obiter dicta. Text writers, the legal profession and the Appellate and trial courts of this State have for years understood it to be the settled doctrine of this court that where the next of kin are collateral kindred of the deceased and have not received pecuniary aid from him, and are not in a situation to require it, only nominal damages can be recovered. We have read with care the numerous authorities cited, and are fully aware that all courts are not in harmony on this question, but find nothing that would justify us in overturning the doctrine long established in this State.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.