Rabig v. Cleveland, Cincinnati, Chicago & St. Louis Railroad

Mr. Presiding Justice O’Connor delivered the opinion of the court. Appellant brought this suit July 27, 1912, against the appellee, to recover damages for the death of appellant’s intestate, Genevieve M. Rabig, alleged to have been caused by the “wrongful act, neglect or default of appellee. ’ ’ The declaration alleged that the deceased came to her death by reason of the wrongful act or negligence of the appellee, August 23, 1909; that on December 6, 1909, the administrator brought suit to recover damages in the Circuit Court of Kankakee county, Illinois, which was subsequently transferred to the Circuit Court of the United States for the Eastern District of Illinois; that on September 5, 1911, the administrator not being prepared to proceed, the suit was dismissed for want of prosecution; that on July 27, 1912, and within one year from such dismissal, this suit was commenced in the Circuit Court of Cook county. This action is brought under chapter 70, Bevised Statutes (J. & A. 6184 et seq.). Appellee filed a plea of not guilty, and a special plea of the statute of limitations, setting up that the cause of action did not accrue within one year prior to the commencement of the suit. To this plea, appellant filed a replication setting forth the bringing of the suit in the Circuit Court of Kankakee county and the dismissal thereof as above set forth, and alleged that this suit was brought within one year after such dismissal. Appellee demurred to the replication. The demurrer was sustained and the suit dismissed. Both parties concede that the sole, question involved in this appeal is whether the right of action for wrongful death, arising under chapter 70 (J. & A. |f 6184 et seq.), is covered by paragraph 25 of the Statute of Limitations (J. & A. j[ 7220). Chapter 70 provides, in substance, that whenever the death of a person shall be caused “by wrongful act, neglect or default” and the wrongful act, neglect or default is such as would, if death had not ensued, have entitled the party' injured to maintain an action to recover damages, then in such case the person or the corporation which would have been liable if death had not ensued shall be liable, notwithstanding the death of such person; that every such action shall be brought by the personal representative of the deceased person, and the amount recovered, not exceeding $10,000, shall be for the exclusive benefit of the widow and next of kin of such deceased, and “that every such action shall be commenced within one year from the death of such person.” Chapter 83, Revised Statutes (J. & A. If 7196 et seq.), is “An Act in Regard to Limitations” and specifies the time within which certain actions must be brought. Section 12 of the Act (J. & A. 7207) provides: “The following actions can only be commenced within the periods hereinafter prescribed, except when a different limitation is prescribed by statute.” This chapter was amended in 1873. Section 2 of the amendment, (paragraph 25, J. & A. j[ 7220) provides: “In any of the actions specified in any of the sections of said Act, * * * if the plaintiff shall be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, * * * may commence a new action within one year after such judgment * * * against the plaintiff, and not after.” It will be noted that paragraph 25 covers only actions mentioned in the statute of limitations and nowhere is any mention made of the right of action created by chapter 70. We are therefore of the opinion that the cause of action provided for in chapter 70 is not covered by chapter 83, but is expressly excluded therefrom by section 12 above quoted. Chapter 83, as is shown by its title and the entire act, is a statute of limitations, and section 12, expressly excepts from chapter 83 all actions where a different limitation is prescribed by statute. And it is provided in section 2 of chapter 70 (J. & A. 7220) that the right of action mentioned therein shall be brought within one year after the death of the person. It therefore follows that the case at bar does not fall within the provisions of paragraph 25, and the demurrer to appellant’s replication was therefore properly sustained. The same conclusion was reached by the Appellate Court in the cases of Lake Shore & M. S. Ry. Co. v. Dylinski, 67 Ill. App. 114, and Heimberger v. Elliott Frog & Switch Co., 151 Ill. App. 318. The judgment of the Superior Court of Cook county is affirmed. Affirmed.