Devine v. Chicago City Ry. Co.

• Decision Date: 15 December 1908
• Citation: 237 Ill. 278,86 N.E. 689
• Parties: DEVINE v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

237 Ill. 278

86 N.E. 689

DEVINE

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

Dec. 15, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Robert W. Wright, Judge.

Action by John F. Devine, administrator of Thomas Keating, deceased, against the Chicago City Railway Company. From a judgment of the Appellate Court affirming a judgment of the circuit court for plaintiff, defendant appeals. Affirmed.John E. Kehoe and Watson J. Ferry (John R. Harrington, of counsel), for appellant.

O'Donnell, Dillon & Toolen, for appellee.

It appears from the evidence that deceased was found by a night watchman about 2 o'clock on the morning of April 29, 1905, lying unconscious on the sidewalk on Sixty-Third street, and having a wound on the right side of his head some five inches long. He was taken to a hospital in the patrol wagon, and died about 2 o'clock the next afternoon. The evidence shows that the deceased, in company with one Casey, had been drinking to a considerable extent the afternoon of April 28th, remaining in the last saloon until nearly midnight. Casey testified that at a point near State and Thirty-Seventh streets they boarded a street car and stood on the rear platform of the front car; that the conductor asked for their fares, and that the witness, who was an employé of the company, showed a badge; that the deceased told the conductor that he had a badge also, but showed none. He was told he must pay fare or get off the car. This he refused to do, and after some talk the conductor pushed him off the car. Deceased immediately got back onto the running board of the car, and this witness states that the conductor then struck the deceased on the head with something about a foot long; that the deceased sank to his knees, still holding to the car, and the conductor hit him a second time; and that then deceased fell to the street in a heap. Casey testified that the conductor then kicked and pushed him off the car, and, after following it a short distance, he went back to the deceased and found him just getting up and bleeding from the right side of the head. After washing Keating's head at a nearby saloon, they boarded another car at Thirty-Ninth street to go to Sixty-Third street, where the witness went to the car barn to make an inquiry, leaving Keating sitting on the sidewalk, and, when he returned to that point from the barn, Keating was gone. The next time witness saw him was at the undertaker's, after his death. There was testimony by other witnesses that Casey and Keating were drunk, and that the conductor hit the latter. The motorman of the car on which the deceased was when struck stated that the conductor used a ‘billy’ about six or eight inches long, made of leather and filled with sand. The conductor was not called as a witness.

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

The defendant filed a general and special demurrer to the declaration. No issue was joined on this demurrer, and the declaration and demurrer were all the pleadings in the case. The case was called, both parties being represented by counsel, and a jury was impaneled without either party saying anything about the condition of the pleadings. The attention of the trial court does not seem to have been specifically called to this question at any time. The instructions asked do not mention it. The motion for new trial, although it sets out particularly 26 different reasons why a new trial should be granted, does not call attention to it; and, while a formal motion for arrest of judgment appears to have been made, the record does not disclose that the court's attention was then called to this point. Apparently it was first raised in the Appellate Court. Appellant argues that this is an error that appears on the face of the record, and hence can be raised in a court of review for the first time. Conceding, for the sake of the argument, that this is true, is the error of such nature as to require the reversal of this case? It must be admitted, as was stated by Mr. Justice Breese in Hopkins v. Woodward, 75 Ill. 62, that the cases in this state on this question are not in entire harmony. This court held that where, while a demurrer is pending, general and special pleas are filed to the count demurred to, the demurrer is thereby waived, and no judgment need be pronounced on it. Walden v. Gridley, 36 Ill. 523. Substantially to the same effect are Davis v. Ransom, 26 Ill. 100,Edbrooke v. Cooper, 79 Ill. 582,Hull v. Johnston, 90 Ill. 604,Shreffler v. Nadelhoffer, 133 Ill. 536, 25 N. E. 630,23 Am. St. Rep. 626, and Chicago & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680. We have also held that, if the parties appear and go to trial without a plea being put in, it is such an irregularity as will be held waived and cured by the verdict underthe statute of amendments. Brazzle v. Usher, Breese, 35. To the same effect are Loomis v. Riley, 24 Ill. 307,Strohm v. Hayes, 70 Ill. 41,Barnett v. Graff, 52 Ill. 170, and First Nat. Bank v. Miller, 235 Ill. 135, 85 N. E. 312. It has been held it is error to render judgment by default on demurrer to one of the counts in the declaration when one of the special pleas remained undisposed of. Bradshaw v. McKinney, 4 Scam. 54;Steelman v. Watson, 5 Gilman, 249. It has also been held that, where a demurrer remains undecided as to a part of the counts of a declaration, it is erroneous to try the case and render final judgment against the defendant on the other counts. Bradshaw v. Hoblett, 4 Scam. 53;Weatherford v. Wilson, 2 Scam. 253. This court in Nye v. Wright, 2 Scam. 222, held that, where the record showed that a demurrer had been filed in the court below by the defendant and the plaintiff had joined in the demurrer, it was error to proceed with the cause and submit it to a jury upon its merits without first disposing of the demurrer. The doctrine of that case has been upheld in Moore v. Little, 11 Ill. 549, and Chapman v. Wright, 20 Ill. 120, and substantially to the same effect are Richeson v. Ryan, 15 Ill. 13, and Sammis v. Clark, 17 Ill. 398. In Lincoln v. Cook, 2 Scam. 61, it was held that where the record stated that the court sustained the demurrer to the first plea of the defendant, and that after replication filed to certain other pleas issues were joined by agreement of parties and the cause submitted to a jury, the parties must be considered as waiving all objections to the form of the pleadings on either side. In Parker v. Palmer, 22 Ill. 489, the conflict in the decisions here under discussion was noticed,...