Bahr v. Nat'l Safe Deposit Co.

• Decision Date: 23 April 1908
• Citation: 234 Ill. 101,84 N.E. 717
• Parties: BAHR v. NATIONAL SAFE DEPOSIT CO.
• Court: Illinois Supreme Court

234 Ill. 101

84 N.E. 717

BAHR

v.NATIONAL SAFE DEPOSIT CO.

Supreme Court of Illinois.

April 23, 1908.

Appeal from Branch Appellate Court, First District; on Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Action by Arthur Bahr, administrator of the estate of Bruno O. Bahr, deceased, against the National Safe Deposit Company. From a judgment of the Appellate Court affirming a judgment of the superior court for defendant, plaintiff appeals. Affirmed.Christian Meier (Goldzier, Rodgers & Froehlich, of counsel), for appellant.

Horton, Brown & Miller, for appellee.

Arthur Bahr, as administrator of the estate of Bruno O. Bahr, deceased, commenced a suit in the superior court of Cook county against the National Safe Deposit Company to recover damages for the death of Bruno O. Bahr, which it is alleged resulted from the negligence of defendant. On January 31, 1906, a declaration, consisting of three counts, was filed, the first count of which is as follows: ‘For that whereas the defendant, in the lifetime of the said Bruno O. Bahr, to wit, on or about the 24th day of October, A. D. 1905, was possessed of, controlled, and managed a certain building and appurtenances thereto belonging, in the city of Chicago, in the county aforesaid, in which said building there now is, and before and on the day aforesaid there was, a certain air shaft with an opening on each floor of said building, messuage, and premises of the defendant, yet the defendant, well knowing the matters aforesaid, while it was the possessor, occupant, and manager of the said building and the appurtenances thereto, and while there was such air shaft, as aforesaid, to wit, on the day aforesaid, there wrongfully, negligently, and unjustly permitted the openings of said air shaft then and there so badly, insufficiently, and defectively closed, guarded, obstructed, and protected, that by means of the premises, and for want of proper and sufficient closing, guarding, obstructing, and protecting of the openings to said air shaft, and while the said Bruno O. Bahr, on the day aforesaid, was in the said building of the defendant, then and there necessarily and unavoidably fell in and through the said air shaft, and was thereby then and there killed.’ Then follows allegation as to heirship. The second and third counts were not materially different from the first. On March 6, 1906, the defendant filed a plea of the general issue to the first and second counts and a general demurrer to the third count of the declaration. On the 20th of November the defendant withdrew its plea to the first and second counts and interposed a general demurrer to the whole declaration, which was sustained. On November 23 the plaintiff filed an amended declaration, and on November 28, 1906, the defendant filed a plea of the general issue and a plea of the statute of limitations to the amended declaration. Issue was joined upon the first plea, and the plaintiff demurred to the plea of the statute of limitations, which demurrer was overruled, and the plaintiff electing to stand by his demurrer, the suit was dismissed and judgment entered in favor of the defendant and against the plaintiff for costs. This judgment has been affirmed by the Appellate Court for the First District. From that judgment, plaintiff below has perfected an appeal to this court.

VICKERS, J. (after stating the facts as above).

The rule is established in this state that the statute of limitations expiring after the commencement of an action bars recovery upon an amended pleading afterwards put in, where the original pleading fails to state a cause of action; or, stated in other words, the rule is that when a plaintiff, in his original declaration filed before the statute of limitations has run against his cause of action, fails to aver any cause...