Holton v. Daly

Citations

• 106 Ill. 131
• 1882 Ill. LEXIS 360

Syllabus

<p>1. Abatement—motion to dismiss for death of plaintiff, not proper. After the death of the plaintiff in an action to recover for a personal injury from negligence of the defendant, and the substitution of the administrator as plaintiff, a motion was made to dismiss the suit on the ground the cause of action did not survive, the record not showing of what the deceased died: Held, that the motion was impracticable, and properly overruled. If the motion could be allowed to take the place of a demurrer, which was not conceded, it could only reach defects apparent on the face of the record.</p> <p>2. Death from wrongful act, etc.—ground of recovery therefor. Under the act of 1853, giving an action to the legal representative of a deceased person to recover damages in case the death of the intestate was caused by the wrongful act, neglect or default of another, the cause of action is the wrongful act, default or neglect of the defendant causing the death, and not merely the death itself.</p> <p>3. Same—of the declaration to recover for wrong, causing death. In an action under the act of 1853, giving an action for a wrongful act, etc., causing the death of another, the declaration must aver and the proof show a wrongful act, neglect or default of the defendant causing the death of the intestate, under such circumstances as would entitle him to .maintain an action if death had not ensued, and the fact of survivorship, and the name or names of the widow or next of kin.</p> <p>Í. Same—elements of damages in ease. In an action brought by the representative of a deceased person to recover damages of the defendant for his wrongful act or negligence causing the death, no damages can be allowed for the bodily pain and suffering the deceased underwent, and his inability, after receiving the injury, to attend to his affairs generally, and for medical attendance and nursing. The damages recoverable are purely such as arise from pecuniary loss to the widow and next of kin.</p> <p>5.