Lee v. Republic Iron & Steel Co.

148 Ill. App. 585

• Court: Appellate Court of Illinois
• Decided: March 24, 1909
• Docket: Gen. No. 5,099
• Status: Published

Opinions

Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is contended that the cause of action stated in the amended declaration is not the same cause set forth in the original declaration, and that the court erred in sustaining the demurrer to the pleas of limitation^ The supposed negligence of the defendant company which was declared upon in the original third count was the alleged negligent manner in which the company had previously caused the belt to be repaired, to wit, with staples and tacks, and connected therewith the order, of the foreman to plaintiff, to assist in its repair at the time he was injured with the requirement that he should climb upon the elevated angle iron. This original count contained the two inconsistent allegations (1) that the “plaintiff repeatedly, and shortly before the injury, objected to defendants about the use of said belt, so tacked together, and repeatedly and shortly before said injury required defendants to have said belt properly repaired and said defendants promised” etc., and (2) “and while the plaintiff was shifting or drawing the said belt over said shaft and without knowledge on his part of the danger of said defective belt and the defective manner of its repair.” The proof showed on the former appeal that plaintiff had no knowledge of the repair of the belt by the use of staples or tacks, and there being an allegation that he had such knowledge, there was a_ variance between the proof and the allegation; the case was reversed because of the variance, the court holding that the allegations must be taken most strongly against the pleader. The amendment in the trial court after the case was remanded only eliminated one of the inconsistent allegations.

“In a case like the one under consideration the cause of action may be regarded as the act or thing done or omitted to be done by one, which confers the right upon another to sue,—in other words the act or wrong of the defendant which causes a grievance for which the law gives a remedy.” Swift & Co. v. Madden, 165 Ill. 41; Swift & Co. v. Gaylord, 229 Ill. 330. The original third count was a defective statement of plaintiff’s cause of action. The amendments filed to the declaration amount to nothing more than a re-statement of the cause of action. The negligent act of the defendant alleged in both the original and amended declarations was the negligent repairing of the belt by means of staples or tacks. “If a suit is brought in apt time and a declaration duly filed stating a cause of action, although imperfectly, subsequent amendments, though filed after the statute of limitations has run, will not be thereby barred if they amount to more than a re-statement, in different form, of the cause of action originally declared upon.” Swift & Co. v. Gaylord, supra. When an original declaration alleges two separate and distinct causes of injury in the same count and a demurrer is sustained on the ground of duplicity, additional counts filed more than two years after the cause of action occurred, alleging the causes of action in separate counts, but which were in the original defective count, do not state a new cause of action. North Chicago City Ry. Co. v. Aufmann, 221 Ill. 614. Failure in an action for negligence to allege due care on the part of the plaintiff amounts merely to a defective statement of the cause of action and does not bar the right to file an amended count more than two years after the injury occurred. In such a case a demurrer to the plea of the statute of limitations is properly sustained. Chicago City Ry. v. Cooney, 196 Ill. 466; Madl v. Chicago City Ry. Co., 121 Ill. App. 602. Amendments to original counts and an additional count merely restating in different form the same cause of action mentioned in an original declaration, or properly pleading a cause of action defectively stated in an original declaration, do not present a new or different cause of action. North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340; Swift & Co. v. Foster, Admr., 163 Ill. 50; Griffin Wheel Co. v. Markus, 180 Ill. 391; C. & E. I. R. R. Co. v. Wallace, 202 Ill. 129; Chicago City Ry. Co. v. McMeen, 206 Ill. 108; South Chicago Street Ry. Co. v. Kinnare, 216 Ill. 451; City of Evanston v. Richards, 224 Ill. 444; Town of Cicero v. Bartelme, 212 Ill. 256. The amended declaration only pleading the same cause of action defectively stated in the different counts of the original declaration, there was no error in sustaining the demurrer to the pleas of the statute of limitations.

It is argued that the court erred in permitting the witnesses, Pickup, Witte and Peterson, to testify concerning the proper manner of repairing belts and that when belts are repaired with staples they have a tendency to straighten out so that the points would stick up, the objection of the defendant being that the witnesses were not experts in that line. The abstract does not show any objection to this evidence or exception to any ruling concerning this evidence. By rule 16 of this court abstracts must show every exception relied upon and that part of the record relied upon which supports the ruling complained of. These not' being shown the defendant is not in a position to raise the question. The abstract does show that Pickup and Witte testified that they had worked for the defendant company in the line of repairing belts for several years, and Peterson testified that he had worked around belts for twenty-five years and that he well knew how they should be repaired. The witnesses properly qualified as experts, and there was no error in admitting their testimony even if an objection was made thereto.

The evidence in this record is very similar to the evidence in the former appeal as it is stated in the former opinion of this court and the Supreme Court. As was stated in the opinion of this court: “A careful reading of the testimony convinces us that the court properly submitted to the jury to determine whether the plaintiff was guilty of contributory negligence, and a consideration of the whole evidence leads us to conclude that we would not be justified in disturbing the verdict and judgment on the ground that they are contrary to the testimony. This case in many respects is not unlike Hartrich v. Hawes, 202 Ill. 334.”

It is very earnestly insisted that the plaintiff assumed the risk arising from the alleged negligence provable under the first two counts of the declaration as amended. Even if that contention was correct still the judgment can be sustained under the remaining counts, but we are of the opinion that by the amendment of the first and second counts they merely state in a different form the cause of action stated in the third count. If there is one good count the judgment will be sustained if supported by the evidence. Consolidated Coal Co. v. Scheiber, 167 Ill. 539; Olson v. Kelly Coal Co., 236 Ill. 502.

The only other question presented for review is the contention that the verdict is excessive. The plaintiff, a blacksmith’s helper twenty-four years of age, sustained the loss of his left arm below the elbow. The evidence shows he was earning before the injury one dollar and sixty cents per day, working eight hours. He now earns one dollar and fifty-three cents per day working twelve hours. If he worked the same number of hours his annual financial loss would be less than two hundred dollars. Interest at five per cent on the amount of the judgment would be $550 and he would have the principal in addition. It is true he has suffered much pain and will be inconvenienced all his life. It is also true that a pecuniary value cannot be placed upon an arm, but the law only gives pecuniary compensation, unfeeling and heartless though it may appear; but we must hold a verdict to be excessive which gives him at once the principal of a sum the interest of which is larger than the wages he was earning at the time of the injury, when it appears the plaintiff is still able to earn near the amount of wages he earned before the injury. This court will require a remittitur of $3000 which will leave his earnings and interest $200 a year in excess of his earnings before the injury and he also will be the owner of the principal of the judgment in addition.

This opinion will be lodged with the clerk, and if a remittitur of $3000 is filed within seven days it will be affirmed at the costs of the appellee; otherwise it will be reversed because of the excessive damages allowed.

Appellee having filed herein a remittitur of $3000 the judgment will be affirmed for the balance, at the costs of appellee.

Affirmed with remittitur.