Fitzpatrick v. Pitcairn, 24968.

• Decision Date: 12 April 1939
• Docket Number: No. 24968.,24968.
• Citation: 20 N.E.2d 280,371 Ill. 203
• Parties: FITZPATRICK v. PITCAIRN et al.
• Court: Illinois Supreme Court

371 Ill. 203

20 N.E.2d 280

FITZPATRICK

v.PITCAIRN et al.

No. 24968.

Supreme Court of Illinois.

Feb. 22, 1939.

Rehearing Denied April 12, 1939.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; Joseph E. Daily, Judge.

Three separate actions by Sayde E. Fitzpatrick, as administratrix of the estates of Francis Kenneth Fitzpatrick, deceased, of John Q. Fitzpatrick, deceased, and of John J. Fitzpatrick, deceased, against the Wabash Railway Company, to recover for the wrongful deaths of decedents, wherein Norman B. Pitcairn and another, as receivers of the railway company, were substituted as defendants. An order dismissing the consolidated cases because of plaintiff's failure to make the substituted defendants parties to the action within one year after decedents' deaths was affirmed by the Appellate Court for the Second District, 296 Ill.App. 531, 16 N.E.2d 764, and the consolidated cause was appealed to the Supreme Court on a certificate of importance.

Judgment of Appellate Court affirmed.Knoblock & Sloan, of Peoria (John F. Sloan, Jr., of Peoria, of counsel), for appellant.

Miller, Elliott & Westervelt, of Peoria, for appellees.

JONES, Justice.

The question in this case is whether, in an action against an incorporated railroad company for damages on account of wrongful death, the receivers of the railroad company, who were such at the time of the accident and when the suit was begun, may, after the statutory limitation of one year for commencing suit, be added or substituted as defendants in place of the railroad company.

Plaintiff's husband and two minor children were accidentally killed by a passenger train on January 18, 1936, at a highway crossing in the village of Campus, in Livingston county. Within one year thereafter, as administratrix of their respective estates, plaintiff instituted three suits in the circuit court of Peoria county to recover for their deaths. In each of the complaints the ‘Wabash Railway Company, a corporation,’ and A. F. McDonald, the engineer of the train, were named as defendants. The proceedings in each case were the same. The summons recites service upon the railway company by delivering a copy to Charles T. Chapman, its agent. Separate amended answers were filed by McDonald and the Wabash Railway Company. The answers denied the averments in the complaints that the railway company was in possession and control of and was operating the railroad and train. More than one year after the accident, the receivers were, by leave of court, added as parties defendant and were served with process. They filed a motion to dismiss the complaint as to them on the ground they were not made parties until more than one year after the accidental deaths. Plaintiff filed a motion to amend the name of defendant by making the receivers a party instead of the railway company, and demanded a jury trial on issues of fact alleged to be set forth in her motion. The motion contained no allegation of fact. The demand for a jury trial was refused and evidence was heard by the court. Plaintiff's motion was denied, and the motion of the receivers to dismiss the complaint, as to them, was granted. Thereupon plaintiff filed a motion for leave to file an amended complaint and to amend the summons and return by substituting the names of the receivers for that of the railway company. The motion to amend the summons and return was denied. Upon leave granted, an amended complaint was filed naming the receivers as defendants, and charging they were in possession and control of and were operating the railroad and train at the time of the accident, with allegations of negligence and resulting injury. The motion of the receivers to dismiss the original complaint was ordered to stand to the amended complaint. Plaintiff's demand for a jury trial under the motion was denied. The motion to dismiss was allowed and the suit was dismissed at plaintiff's cost. Upon an appeal in each case to the Appellate Court for the Second District the causes were consolidated and the judgments of the circuit court were affirmed. The consolidated cause is here by appeal from the Appellate Court on a certificate of importance.

Plaintiff claims the court erred in dismissing the receivers from the suit; in denying the motion to amend the summons and return; in denying a demand for a jury trial; in denying the motion to dismiss the amended complaint, and in dismissing the amended complaint. We first notice the claim that plaintiff was entitled to a jury trial on questions of fact raised by the motions. The motion to dismiss recites chronologically the proceedings, with their dates, including the alleged date of the injury and death, none of which is disputed. It concludes with averments that the suit was not commenced against the receivers within one year from the date the cause of action arose, and the cause of action against the receivers did not accrue within one year next before it was commenced against them. The motion for leave to file the amended complaint sets out that the answers to the original complaint were filed by the same counsel who represent the receivers; that, at the coroner's inquest, McDonald testified he was an engineer for the Wabash Railway Company;that representatives of the receivers were present at the inquest, and an investigation and a report of the accident were made by agents of the receivers; that plaintiff's counsel did not learn the correct name of the defendant was that of the receivers until more than one year after the death of the decedents, and, prior thereto, plaintiff and her attorneys had every reason to believe the name of the defendant operating the trains was ‘Wabash Railway Company;’ that the engine and cars of the train involved bore the name ‘Wabash’ or ‘Wabash Railway Company,’ and the latter name appears on the office door of the railroad in Peoria, and in the city directory and telephone directory of that city, without any reference to the receivership; that Charles T. Chapman was for many years prior to 1931 general freight-agent of the railway company and that he has been in the employ of the receivers since their appointment; that immediately after summons was served upon him he communicated notice thereof to his superior and the answers to the original complaint were filed by, through and at the request of the receivers to delay proceedings in the hope that plaintiff would not discover the defendant until the one year limitation for filing suit had expired. A number of the facts alleged were proved at the hearing on the motion to dismiss the original complaint. It was also proved that the names of the receivers appeared inside the coaches, and on tariffs, tickets, freight bills and posters. The testimony was adopted on the motion to dismiss the amended complaint. Plaintiff's claim is that, under the facts shown, the receivers were parties defendant from the time the suit was first instituted. None of the allegations of fact in the amended complaint, and none of plaintiff's evidence is in any way controverted or questioned by the motion to dismiss. The only issue on the motion was whether the law, as applied to the facts, shows the suit was in legal contemplation commenced against the receivers within the statutory limitation. No issue of fact was involved. The provision in section 48 of the Civil Practice act (Ill.Rev.Stat.1937, chap. 110, § 172) that, on a motion to dismiss, if disputed questions of fact are involved, the court shall deny the motion if the action is one at law and the opposite party demands the issue be tried by a jury, has no application here. The court did not err in denying the demand for a jury trial.

Under the claim that the court erred in dismissing the receivers from the suit and in dismissing the amended complaint, appellant confuses the holdings in cases of...