City of Chicago v. Lonergan

• Decision Date: 16 April 1902
• Citation: 63 N.E. 1018,196 Ill. 518
• Parties: CITY OF CHICAGO v. LONERGAN.
• Court: Illinois Supreme Court

196 Ill. 518

63 N.E. 1018

CITY OF CHICAGO

v.LONERGAN.¹

Supreme Court of Illinois.

April 16, 1902.

Appeal from appellate court, First district.

Action by Esther G. Lonergan against the city of Chicago. From a judgment of the appellate court affirming a judgment for plaintiff, defendant appeals. Affirmed.Charles M. Walker, Corp. Counsel, and Thomas J. Sutherland, for appellant.

Wm. M. & Wm. S. Johnston and Charles C. Gilbert, for appellee.

PER CURIAM.

The appellate court for the First district affirmed a judgment recovered by appellee against appellant in the circuit court of Cook county in a suit for damages to appellee's property by changing and lowering the grade of Forty-Seventh street, in the city of Chicago, and impairing the means of access to the property from the street. The plaintiff owns premises on the northwest corner of Armour avenue and Forty-Seventh street, in front of which the grade was changed by the Lake Shore & Michigan Southern and Chicago, Rock Island & Pacific Railroad Companies, under an ordinance of defendant requiring said companies to elevate their roadbeds and tracks which crossed Forty-Seventh street west of the plaintiff's property, and to change and lower the grade of Forty-Seventh street so as to make a subway under the tracks for the street. The change of grade and depression of Forty-Seventh street began at the center of Armour avenue, near the southeast corner of plaintiff's premises, where the depression was about ten inches. This depression became greater toward the west, and, according to the plan, was about four feet at the west end of the premises. The tracks were ordered to be elevated and the subway to be built for the purpose of abolishing a grade crossing of the street and tracks, and the prevention of accidents and injuries to the public.

The first assignment of error which is argued by counsel is that the declaration did not state a cause of action. The defendant demurred to the declaration, and, its demurrer being overruled, filed its plea of not guilty, under which the trial was had; and, where that is the case, only substantial defects can be availed of on appeal or error. When an entire verdict is given on several counts, it will not be set aside or reversed because of any defective count if one or more of the counts be sufficient to sustain the verdict. Prac. Act, § 57. After a party has pleaded to a declaration, if one or more of the counts be faulty he may apply to the court to instruct the jury to disregard such faulty count or counts, and it is the duty of the court to give such instruction. Id. § 50. Innate and substantive defects in a declaration are not cured by verdict, and if there are such defects, so that the declaration will not support the judgment, they may be taken advantage of on appeal or error; but only substantial defects can be so taken advantage of. In such a case the verdict will aid a defective statement of title or cause of action, and the rule on that subject is: ‘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 formed be such as necessarily required, on the trial, proof of the fact so defectively or imperfectly stated or omitted, and without which it is not to be presumed 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; Keegan v. Kinnare, 123 Ill. 280, 14 N. E. 14; Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021,22 Am. St. Rep. 515; Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680. A verdict, however, will never assist a statement of a defective title or cause of action; and where no cause of action is stated the defect is not cured by verdict, and the objection may be availed of on error after a demurrer has been overruled and a defendant has pleaded over. The rule on that subject is this: ‘Where the statement of the plaintiff's cause of action, and that only, is defective or inaccurate, the defect is cured by a general verdict in his favor, because, ‘to entitle him to recover, all circumstances necessary, in form or substance, to complete the title so imperfectly stated, must be proved at the trial,’ and it is therefore ‘a fair presumption that they were proved.’ But where no cause of action is stated the omission is not cured by verdict, for as no right of recovery was necessary to be proved or could have been legally proved under such a declaration, there can be no ground for presuming that it was proved at the trial.' Gould, Pl. 463. The objection made to the declaration in this case is, that it only charges the change and lowering of the grade of the street in front of plaintiff's property, and the damage resulting therefrom, and fails to state the other acts of the defendant or the railroad companies which were connected with the change of grade as a part of the improvement. Counsel say that, in determining whether damage has resulted to plaintiff's property, all of the consequences of the entire improvement must be considered, and the only sufficient declaration would therefore be one which describes the whole improvement. The supposed objection does not appear by an inspection of the declaration, but only by an examination of the evidence containedin the bill of exceptions. The declaration alleges the ownership by plaintiff of the premises bounded by Forty-Seventh street; that the grade of said street had been long established, and her buildings had been erected with reference to the grade; and that defendant changed the grade, and permanently lowered it, making access to plaintiff's buildings and property, and egress therefrom, difficult and dangerous, and greatly and permanently damaging the property in its market value. This was a good cause of action. Rigney v. City of Chicago, 102 Ill. 64. The established rule is that, in determing whether damage has resulted to property from an improvement, a city has a right to have all benefits from the improvement offset against the alleged damages for changing the grade. That was a matter of defense proper to be...