Foley v. Suburban Ry. Co., 98 Ill. App. 108 (1901)

Nov. 7, 1901 · Illinois Appellate Court

98 Ill. App. 108

William M. Foley, Adm., etc., v. Suburban Ry. Co.

1. Pleading — Effect of a Failure to Allege that a Deceased Person Left Next of Kin. — Where a declaration, as originally filed, in an action for damages sustained by the death of a person from negligence, fails to allege that the deceased left a widow or next of kin surviving him, it fails to state a cause of action, and an amendment filed more than two years after the cause of action arose, which alleges that he did leave surviving him a widow and children, is barred by the statute of limitations.

Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1901.

Affirmed.

Opinion filed November 7, 1901.

Frank H. Novak, attorney for appellant.

Clarence A. Knight and William G-. Adams, attorneys for appellee.

Mr. Justice Adams

delivered the opinion of the court.

This is a suit by appellee against appellant for alleged negligence causing the death of plaintiff’s intestate. The suit was commenced July 25, 1899, and the declaration was filed August 8, 1899. It is averred in the declaration, and is conceded by counsel for appellant, that the accident which resulted in the death of appellant’s intestate, occurred July 27, 1897. The original declaration, filed August 8, 1899, contained no averment of the survival of any kin of appellant’s intestate. January 2, 1901, appellant, by leave of the court, filed an amendment to the declaration, alleging the survival of certain persons, naming them, and that they were the heirs and next of kin of appellant’s intestate.

To the declaration, as amended, a plea of the statute, limiting such actions to two years after the cause of action accrues, was pleaded, to which plea appellant filed a demurrer, which the court overruled, sustained the plea, and rendered judgment for appellee. Foster v. St. Luke’s Hospital, 191 111. 94, is decisive that the demurrer was properly overruled and the plea sustained.

The judgment will be affirmed.