Eylenfeldt v. Illinois Steel Co.

• Decision Date: 09 November 1896
• Parties: EYLENFELDT v. ILLINOIS STEEL CO.
• Court: Illinois Supreme Court

165 Ill. 185

46 N.E. 266

EYLENFELDT

v.ILLINOIS STEEL CO.¹

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, First district.

Action by William Eylenfeldt against the Illinois Steel Company. A judgment for plaintiff having been reversed by the appellate court (62 Ill. App. 552), plaintiff appeals. Affirmed.

Brandt & Hoffmann and L. H. Craig, for appellant.

Williams, Holt & Wheeler and E. P. Prentice, for appellee.

This was an action of trespass on the case brought by William Eylenfeldt against the Illinois Steel Company to recover damages for a personal injury received while in the employ of the steel company, unloading certain cars, caused, as alleged, through the negligence of the steel company. The accident resulting in the injury occurred January 17, 1892. Suit was begun on the 29th day of March, 1892, and on the 6th day of May of the same year plaintiff filed his declaration, which was as follows: ‘Wm. Eylenfeldt, plaintiff, by L. H. Craig, his attorney, complains of the Illinois Steel Company, a corporation defendant, of a plea of trespass on the case, for that whereas, the defendant heretofore, to wit, on the 20th day of February, A. D. 1892, was then and there the proprietor of, and was then and there operating, managing, and controlling by its agents and employés, a certain iron mill or foundry, in the city of Chicago, in the county aforesaid, near to and in the neighborhood of the intersection of Ashland avenue and 31st street, in the said city, and the plaintiff was then and there in the employ of the defendant in and about the management, control, and operating of said iron mill or foundry, and was then and there placed by the defendant under the control and direction of its (the defendant's) foreman. Wherefore the plaintiff says that he is damaged and injured and has sustained damages to the amount of $25,000, and therefore he brings suit,’ etc. ‘L. H. Craig, Plff.'s Atty.’ On May 13, 1892, the defendant interposed a general demurrer to the declaration, and on January 31, 1895, the court granted plaintiff leave to file an amended declaration. The plaintiff amended the declaration by inserting, immediately after the word ‘foreman,’ facts which would make a good declaration in an action for negligence where an employé had been injured through the negligence of the employer. To the amended declaration the defendant pleaded the general issue, and also a plea of the statute of limitations, in which it set up that the action did not accrue within two years next before the commencement of suit by filing the amendment to the declaration. To the plea the court sustained a general demurrer. The plaintiff also filed additional counts to the declaration, which were in substance like the amended declaration. To these defendant pleaded the statute of limitations, and the court sustained a demurrer to the plea. On a trial before a jury the plaintiff recovered a judgment, which on appeal was reversed in the appellate court on the sole ground that the action was barred by the statute of limitations. To reverse that judgment the plaintiff in the action has presented this appeal.

CRAIG, J. (after stating the facts).

As will be observed, the plaintiff was injured on the 17th of January, 1892, and suit was brought on the 29th day of the following March. What purported to be a declaration was filed, but it stated no cause of action. No declaration was filed stating a cause of action until January 31, 1895, more than three years after the accident, and more than one year after the statute of limitations had run. And the question presented by the record is whether the statute of limitations was a bar to the action when the amended declaration was filed, on the 31st day of January, 1895. It is a well-established rule of pleading that a new cause of action, distinct from that already averred in the declaration, cannot be set up by way of amendment to the declaration, or by adding additional counts to the declaration, after the time for suing upon such cause of action has expired by the statute of limitations. But when the amendment by an additional count is introduced merely to restate in a different form the same cause of action set up in the declaration as originally drawn, and not to present a new and different cause of action, the rule does not apply, and a plea of the statute of limitations to such new count cannot be sustained. Mill Co. v. Monka, 107 Ill. 340. The rule indicated is fully sustained by the case cited, and also by the following cases: Railroad Co. v. Cobb, 64 Ill. 128;Phelps v. Railroad Co., 94 Ill. 548;Mitchell v. Milholland, 106 Ill. 175;Dickson v. Railroad Co., 81 Ill. 215;Blanchard v. Railway Co., 126 Ill. 416, 18 N. E. 799; Railroad Co. v. Jones, 149 Ill. 361, 37 N. E. 247;Haynie v. Railroad Co., 9 Ill. App. 105. In the Phelps Case, supra, in the discussion of the question it was, among other things, said: ‘The causes of action declared on in the original declaration in the present case were for a failure to perform a common-law duty by a common carrier,-to receive and carry goods offered for carriage. The causes of action stated in the additional counts are for failing to carry and safely deliver goods which defendant had received for carriage as a common carrier. The former were for refusing to...