Gilman v. Chicago Railways Co.

185 Ill. App. 396, 1914 Ill. App. LEXIS 1103

• Court: Appellate Court of Illinois
• Decided: March 10, 1914
• Docket: Gen. No. 19,144
• Status: Published

Opinions

Mr. Justice Clark

delivered the opinion of the court.

By the writ of error in this case a judgment in favor of the defendant in error for five hundred dollars is sought to be reversed. Only the common-law record is before us, and the assignments of error are all based on the one proposition that the plaintiff’s statement of claim does not set forth a cause of action, and that, therefore, the judgment predicated upon it should not be allowed to stand. The plaintiff’s statement is as follows;

“Plaintiff’s claim is for damages caused by a door in one of defendant’s street cars violently striking against the car dumper (bumper) and breaking the glass in the door and showering broken glass on plaintiff cutting the blood vessel and nerve in the back of plaintiff’s right hand causing pain and suffering and loss of two weeks’ time and permanently injuring plaintiff’s hand to plaintiff’s damage of one thousand dollars.”

An affidavit of merits was filed by the Railways Company, defendant, setting forth the nature of its defense to be as follows: “That the injuries complained of in plaintiff’s statement of claim occurred through no fault of the defendant.” The affidavit of defense also contains this language: “Reserving the right to object to any insufficiency of plaintiff’s statement of claim and any insufficiency of plaintiff’s evidence to establish defendant’s liability.” -

We agree with counsel for defendant that the statement of claim does not set up a cause of action, as required by the rules of common-law pleading; it does not charge negligence on the part of the defendant, nor does it allege that the plaintiff was in the exercise of ordinary care. Klawiter v. Jones, 219 Ill. 626; Walters v. City of Ottawa, 240 Ill. 259. The authorities also fully sustain the proposition of the defendant, to the effect that at common law the question that a cause of action is not stated in the declaration is not waived by the filing of the plea of the general issue, and the point may be raised for the first time in a court of review. Smalley v. Edey, 19 Ill. 207; Board Sup’rs Madison County v. Smith, 95 Ill. 328; Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Schueler v. Mueller, 193 Ill. 402; Chicago R. I. & P. Ry. Co. v. People, 217 Ill. 164.

In the case of Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311, it is said in respect to cases like the one now under consideration (being cases of the fourth class):

“As to this class of cases under the Municipal Court act, where no written pleadings are required, the same rule will govern as controls the form of actions before justices of the peace. We have held that ‘it is the well settled practice that in such courts [i e., where written pleadings are not required,]" the party suing need not even name his action, or if misnamed, that will not affect his rights, if upon hearing the evidence he appears to he entitled to recover and the court has jurisdiction of the defendant and of the subject matter of the litigation.’ (Pollock v. McClurken, 42 Ill. 370; Rehm v. Halverson, 197 id. 378; Swingley v. Haynes, 22 id. 214; Ballard v. McCarty, 11 id. 501.) ”

It is argued by-the plaintiff in error that this announcement of the law is incorrect and that the decision is practically overruled by the case of Walter Cabinet Co. v. Russell, 250 Ill. 416, wherein the following language is used:

“The object of the rules requiring statements of claim and of set-off is to inform the parties of the nature of the respective claims, and while the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement. The issue cannot be enlarged by oral claims or affidavits filed in the case.”

The Edgerton case, supra, is not referred to in the case cited, and we should not assume that in the language used it was intended, expressly or by indirection, to reverse the holding in the former case. Until otherwise advised, we must assume that the practice in the Municipal Court in fourth class cases is the same as that in eases before justices of the peace. “In such a case the question is whether the justice of the peace has jurisdiction of the parties and the subject matter of the suit, and a right of recovery is shown,—if so, then he must have judgment.” Pollock v. McClurken, 42 Ill. 370.

The court clearly had jurisdiction, and we must assume that the evidence, if it had been preserved in the record, would have shown a right of recovery in the plaintiff.

The judgment is affirmed.

Affirmed.