Chicago & A.R. Co. v. Murphy
Decision Date | 25 October 1902 |
Citation | Chicago & A.R. Co. v. Murphy, 198 Ill. 462, 64 N.E. 1011 (Ill. 1902) |
Parties | CHICAGO & A. R. CO. et al. v. MURPHY. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district
Action by T. J. Murphy against the Chicago & Alton Railroad Company and F. P. Bagley.Judgment for plaintiff, and defendants brought separate appeals to the appellate court(99 Ill. App. 126), where the judgments were modified and affirmed, and defendants appeal.Affirmed.
James H. Teller and Defrees, Brace & Ritter, for appellants.
C. M. Hardy and L. P. Wilcox, for appellee.
This action on the case was brought by the appellee against the Chicago & Alton Railroad Company and Frederick P. Bagley in the superior court of Cook county.The declaration contained three counts, in the first of which it was alleged that the plaintiff on the 4th day of May, 1897, purchased of the railroad company a passenger ticket from the city of Chicago to Spring-field, Mo., and then became a passenger from said city of Chicago to said destination, and thereupon it became and was the duty of the said defendant railroad company to use due care and diligence in carrying him, and in the management and running of its trains for that purpose; to use due care and diligence to prevent the plaintiff from being injured by dangerous structures and things in and upon said train, and in and upon and along the course of said railroad, while he was thus being carried; to use due care and diligence in watching for and avoiding impending danger and dangerous structures and things in and upon said train, and in and upon and along the course of said railroad, while said plaintiff was being carried by said defendant; yet it did not regard its duty as aforesaid, but, on the contrary thereof, ran and managed said train in such a manner as to bring it with force and violence in contact with a certain large stone, weighing 40 tons, which was then possessed and controlled by the said defendantFrederick P. Bagley at a point near Eighteenth street, upon said railroad, in the city of Chicago, and that the said Bagley did then and there willfully, maliciously, wantonly, carelessly, and negligently handle and manage said stone, by means of a derrick and crane, in such a manner as to bring said stone with great force and violence in contact and collision with said train wherein said plaintiff was a passenger, and by means aforesaid the said stone was then and there carelessly, willfully, maliciously, and negligently hurled with great force and violence by said defendantFrederick P. Bagley into, upon, and against said train wherein the plaintiff was then and there a passenger, by means of which the plaintiff was then and there thrown with great force and violence to and upon the floor of a certain car in said train to and upon the ground, by means of which his head was greatly injured, etc.; describing at length the nature of his injuries, and alleging the expenditure of money in being cured of such injuries.The second and third counts are for the same injury, but the second charges the railroad company alone, and the third the defendant Bagley alone.The suit was first brought in the name of the plaintiff, ‘suing for the use of August Haley.’Pleas of not guilty were filed by both defendants.During the trial, which was by jury, the plaintiff was asked whether he had assigned his claim to Haley, which was objected to by counsel for the plaintiff, and the objection sustained.Thereupon the plaintiff, by leave of the court, amended his declaration by striking out ‘suing for the use of August Haley.’Counsel then asked leave to plead over, but that leave was denied, and the trial proceeded upon the issues made by the pleas of not guilty then on file.The jury returned a verdict in favor of the plaintiff for $6,000.The defendants entered their motions for a new trial and in arrest of judgment, both of which were overruled, and judgment entered upon the verdict.The defendants prosecuted separate appeals to the appellate court for the First district, and the branch of that court, after requiring the plaintiff to enter a remittitur of $3,000, affirmed the judgment of the superior court.The defendants both appeal to this court, and have filed separate briefs and arguments.At the close of plaintiff's evidence, and again at the close of all the evidence, the usual motions for an instruction to the jury to find the issues for the defendants were made and overruled.
It is insisted by counsel for Bagley that the trial court erred in allowing plaintiff to amend his declaration by striking out the words ‘suing for the use,’ etc.The claim was not assignable, and the use of those words was mere surplusage.Railroad Co. v. Lundahl, 183 Ill. 284, 55 N. E. 667.The amendment was only a matter of form, and no further pleas were necessary, or could have been filed.
It is urged by both defendants that the refusal to sustain the motion in arrest of judgment, which was based upon the fact that there was a misjoinder of counts in the declaration, was error.It was improper to join in the same declaration a count against the two defendants, with counts against each of them severally.Of course, joint tort feasors may be sued jointly or severally, but they cannot be sued severally in the same action.It is undoubtedly also true that at common law a misjoinder of counts could be taken advantage of by motion in arrest of judgment or on error, but we do not think that rule should be applied in this state.By section 24 of our practice act, amendments before final judgment may be allowed on such terms as are just and reasonable, introducing new partiesplaintiff or defendant, discontinuing as to any joint plaintiff or defendant, changing the form of action, and in any matter either of form or substance, or in any process, pleading, or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense.Section 6 of the statute of amendments and jeofailes (Hurd's Rev. St. 1899, p. 142) is as follows: ‘Judgment shall not be arrested or stayed after verdict, nor shall any judgment upon verdict or finding by the court, or upon confession nil dicit or non sum informatus, or upon any writ of inquiry of damages, be reversed, impaired, or in any way affected, by reason of any of the following imperfections, omissions, defects, matters or things in the process, pleadings, proceedings or records, namely: * * * Fifth, for any mispleading, insufficient pleading,’ etc.A misjoinder of counts in the same declaration is a ‘mispleading,’ as that term is used in this statute.It was so held in Lovett v. Pell, 22 Wend. 375, in which Senator Verplanck said: ...
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