Consol. Coal Co. of St. Louis v. Scheiber

• Decision Date: 10 May 1897
• Citation: 47 N.E. 1052,167 Ill. 539
• Parties: CONSOLIDATED COAL CO. OF ST. LOUIS v. SCHEIBER.
• Court: Illinois Supreme Court

167 Ill. 539

47 N.E. 1052

CONSOLIDATED COAL CO. OF ST. LOUIS

v.SCHEIBER.¹

Supreme Court of Illinois.

May 10, 1897.

Appeal from appellate court, Fourth district.

Action by Michael Scheiber against the Consolidated Coal Company of St. Louis for personal injuries caused by defendant's negligence. From a judgment of the appellate court for the Fourth district, affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.Charles W. Thomas, for appellant.

W. E. Hadley and Hadley & Burton, for appellee.

CARTER, J.

Appellee, a boy of the age of 16 years, was employed by appellant as a driver in its coal mine in drawing coal to the opening at the bottom of the pit, and, after being so employed about 5 months, was injured in his left leg by means of slate falling upon it from the roof of the mine. The injury was such that the limb was afterwards amputated above the knee. Before that he had worked in the same mine about 18 months, as helper to the drivers. He recovered a judgment against appellant for $7,566.35 on account of the injury, and this judgment has been affirmed in the appellate court. The declaration contained six counts, to which counts appellant did not demur, but pleaded the general issue. Upon the trial the defendant asked this instruction: ‘The court instructs the jury to disregard the first count of plaintiff's declaration;’ also five others of the same character, one applicable to each count. The court gave the sixth, but refused to give those applicable, respectively, to the first five counts. It is contended that all of the counts were faulty, and that it was the duty of the court, under the fiftieth section of the practice act, to instruct the jury to disregard them. That section reads: ‘If one or more of the counts in a declaration be faulty, the defendant may apply to the court to instruct the jury to disregard such faulty count or counts.’ The fourth count alleged, in substance, that the defendant was possessed of and operating a coal mine, commonly called the ‘Hintz Bluff Mine,’ near Collinsville,and the plaintiff, a minor of 16 years of age, was employed in the mine for the purpose of driving mules, hitched to boxes loaded with coal, from the place where the boxes were loaded to the bottom of the shaft, and it was the duty of defendant to make and keep the places where the plaintiff was required to go in the performance of his duties reasonably safe; that defendant had notice that the roof in a certain part of the mine where plaintiff was required to work was dangerous and unsafe and liable to fall, and defendant undertook to properly secure the said roof, so that it would not fall on the plaintiff, but the defendant so carelessly did its duty in that behalf that the roof was loosened and rendered more dangerous and liable to fall; and while the plaintiff was in the performance of his duty, using due care and caution for his own safety, a large part of the roof of the mine fell upon the plaintiff, and crushed him, etc. The fifth was substantially the same, except that it alleged that the plaintiff was ignorant of the danger to which he was exposed.

From the view we take of the case, it is unnecessary to examine the other counts of the declaration, for if there is one good count to which the evidence was applicable, and which is sufficient to sustain the judgment, the error of the court, if any, in refusing to instruct the jury to disregard the other counts, becomes harmless. It could not, in reason, be said that the defendant occupied any better position than it would had it filed a general demurrer to each count, and refused to plead further; and it has been decided by this court, under the statute, that where a defendant abides by his general demurrer, which has been overruled, to each of several counts, and final judgment has been rendered for the damages as assessed, the judgment will not be reversed because the court erred in overruling the demurrer to some of the counts, if one of the counts is good, and the evidence upon which the damages were assessed is applicable to such good count. North v. Kizer, 72 Ill. 172. See, also, Shreffler v. Nadelhoffer, 133 Ill. 536, 25 N. E. 630; Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021;Anderson v. Semple, 2 Gilman, 455. Only such faults, however, in the count as would render it insufficient to support the judgment, can be reached by instructions to disregard it. All others are waived by taking issue upon it, for the general rule is that all defects appearing upon the face of the pleading are waived by taking issue upon it, instead of demurring, except such as show that there is no cause of action or such as are not cured by verdict. 6 Enc. Pl. & Prac. 372, and notes. Thus, in Railroad Co. v. Warner, 108 Ill. 538, it was held that where the declaration would be sufficient after verdict, as where there was a failure to aver that the plaintiff had no notice of the defective construction of the car, and the defendant did not demur, but on the trial moved to exclude the evidence because of the insufficiency of the declaration, there was no error in overruling the motion. So, also, in Railroad Co. v. Harwood, 90 Ill. 425, where there was a failure to allege in and by what acts the carelessness and impropriety in driving and managing the train were manifested, it was held that such insufficiency should have been availed of by demurrer, and could not be availed of on error.

The ruling of the court in refusing to give the instructions in question was not a decision, as contended by counsel, that the counts of the declaration to which the instructions severally applied were faultless, but only that they were sufficient, after issue joined and in view of the evidence then before the court and jury, to support a verdict and judgment for the plaintiff. Any other construction of the statute would give an undue advantage to the defendant, by permitting him, after waiving the apparent insufficiency of the declaration by taking issue and denying the truth of its allegations, and after, perhaps, a protracted trial of controverted facts upon such issue, to attempt for the first time to take advantage of a mere defect in the pleading of his adversary. The rule at common law was that, although there were good counts in the declaration, yet, if there were one bad count, the judgment would be arrested. But that rule applied only where such bad count was insufficient to support the judgment, and not where it would have been held merely defective in stating the cause of action. Our statute has so far changed that rule that, where there is an entire verdict on several...