Chicago & A.R. Co. v. Clausen

• Citation: 173 Ill. 100,50 N.E. 680
• Parties: CHICAGO & A. R. CO. v. CLAUSEN.
• Decision Date: 21 April 1898
• Court: Supreme Court of Illinois

173 Ill. 100

50 N.E. 680

CHICAGO & A. R. CO.

v.CLAUSEN.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, Second district.

Action by John Clausen against the Chicago & Alton Railroad Company for injuries sustained. From a decision of the appellate court (70 Ill. App. 550) affirming a judgment for plaintiff, defendant appeals. Affirmed.

C. C. & L. F. Strawn, for appellant.

W. H. Ketcham and R. S. McIlduff, for appellee.

CARTWRIGHT, J.

Appellee brought this suit against appellant to recover damages for injuries alleged to have been sustained by the starting of a train on which he was a passenger, while he was attempting to get off at appellant's station at Gardner, Ill. There was a judgment for appellee, which has been affirmed by the appellate court.

It is argued at much length that the trial court improperly overruled a demurrer to the first original count and five amended counts of the declaration upon which the case finally went to trial. No error has been assigned upon such ruling on the demurrer, either in the appellate court or this court, and none could be so assigned, for the reason that after the demurrer was overruled the defendant pleaded the general issue, and thereby raised an issue of fact, which was tried. It has always been the rule in this state that, if a party wishes to have the action of a court in overruling his demurrer reviewed in this court he must abide by the demurrer. By pleading over he waives the demurrer and the right to assign error upon the ruling. Lincoln v. Cook, 2 Scam. 61; Wann v. McGoon, Id. 74; Nye v. Wright, Id. 222; Dickhut v. Durrell, 11 Ill. 72;Walker v. Welch, 14 Ill. 277;Express Co. v. Pinckney, 29 Ill. 392;Gardner v. Haynie, 42 Ill. 291;Grier v. Gibson, 36 Ill. 521;Hull v. Johnston, 90 Ill. 604;Dunlap v. Railway Co., 151 Ill. 409, 38 N. E. 89;Ambler v. Whipple, 139 Ill. 311, 28 N. E. 841.

Defendant made a motion in arrest of judgment, which was overruled, and that is assigned for error; but, having once had the judgment of the court on its demurrer, it could not again invoke it for the same reasons by motion in arrest. After a judgment overruling a demurrer to a declaration, there can be no motion in arrest of judgment on account of any exception to the declaration that might have been taken on the argument of the demurrer. Rouse v. Peoria Co., 2 Gilman, 99;Coal Co. v. Hood, 77 Ill. 68; Express Co. v. Pinckney, supra; Independent Order of Mutual Aid v. Paine, 122 Ill. 625, 14 N. E. 42. While the defendant, by pleading over, waived its demurrer, and the right to assign error upon the ruling of the court on the demurrer, it did not waive innate and substantial defects in the declaration which would render the declaration insufficient to sustain a judgment; and the question whether it is so far defective may be consideredunder the assignments of error. The question which may be thus presented is not as broad as those questions which may be raised by demurrer, for the reason that defects in pleading may sometimes be aided by the pleadings of the opposite party, or be cured by the statute of amendments and jeofails, or by intendment after verdict. The objections made to the various counts of the declaration are that the statements therein are too general and indefinite in failing to show how the starting of the train operated to throw plaintiff from it, and in what manner it was started, and that the various counts allege certain duties on the part of the defendant and charge the neglect and violation of other duties, and the doing of other acts foreign to the duties so alleged, as the cause of the supposed injuries. So far as the declaration is defective in the respects complained of, the defendant's plea of the general issue of course could not aid or supply any omission or informality therein. It is also true that the statute of amendments and jeofails does not extend to cure defects which are clearly matters of substance. It provides that judgment shall not be reversed for want of any allegation or averment on account of which omission a special demurrer could have been maintained, but it does not protect a judgment by default against objections for matter of substance. Many such objections, however, have always been cured, at the common law, by a verdict. At the common law, independently of any statute, the rule was and is ‘that where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict.’ 1 Chit. Pl. 673. This rule was quoted and approved in Keegan v. Kinnare, 123 Ill. 280, 14 N. E. 14, and Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021. The intendment in such case arises from the joint effect of the verdict and the issue upon which it was given, and, if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express statement of it in the declaration is cured by the verdict. Under this rule a verdict will aid a defective statement of a cause of action, but will never assist a statement of a defective cause of action. 1 Chit. Pl. 681. Where the declaration and the issue joined upon it do not fairly impose the duty on the plaintiff to prove the omitted fact, the omission will not be cured (Steel Co. v. Shields, 134 Ill. 209, 25 N. E. 569), and if, with all the intendments in its favor, the declaration is so defective that it will not sustain a judgment, such defects may be taken advantage of on error (Wilson v. Myrick, 26 Ill. 34;Schofield v. Settley, 31 Ill. 515; Railroad Co. v. Hines, supra; Culver v. Bank, 64 Ill. 528). The rule was applied in Haynes v. Lucas, 50 Ill. 436, and the judgment was reversed. That was an action in debt on a contract for the sale of land, and a plea of nil debet, which was bad, had been filed; but it was said that, if the plea had been good, the defect would be ground of error. So in Kipp v. Lichtenstein, 79 Ill. 358, the declaration was so defective that it would not sustain a judgment, and it was held that the objection might be taken on error. That was an action of debt on a supposed statutory liability, and the statute had been repealed. It was held sufficient ground for the reversal that the declaration showed no cause of action. In People v. City of Spring Valley, 129 Ill. 169, 21 N. E. 843, there was an information under which the judgment would be one of ouster against the corporation for...