Fitzpatrick v. Wabash Ry. Co.

CourtUnited States Appellate Court of Illinois
Writing for the CourtWOLFE
Citation296 Ill.App. 531,16 N.E.2d 764
Decision Date30 August 1938

296 Ill.App. 531
16 N.E.2d 764


Appellate Court of Illinois, Second District.

Gen. Nes. 9312]9314.
Aug. 30, 1938.

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, wherein Norman B. Pitcairn and another, as receivers of the railway company, were substituted as defendants, to recover for the wrongful deaths of the deceased. From an order dismissing the consolidated cases because of failure to make the substituted defendants parties to the action within one year after the accident, plaintiff in each case appeals.


DOVE, P. J., dissenting.

[16 N.E.2d 764]

Cassidy & Knoblock and John E. Carlson, all of Peoria, for appellant.

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

WOLFE, Justice.

This is an appeal from an order of the Peoria Circuit Court dismissing the three cases for wrongful death against the receivers of the Wabash Railway Company. The dismissal of the suits by the court was ordered on the pleadings and before trial. There were three separate suits in the circuit court but they have been consolidated in this court. The General Numbers of the cases are, respectively, 9312, 9313, and 9314. The declaration is practically the same in all three cases. The dates on which the pleadings were filed are taken from General No. 9312.

On October 6, 1936, Sayde E. Fitzpatrick as administratrix filed two suits in the Peoria Circuit Court on account of the wrongful death of her two minor sons, John Q. Fitzpatrick and Francis Kenneth Fitzpatrick. There suits were filed naming the defendant as “Wabash Railway Company,” and charged that the wrongful deaths occurred on January 18, 1936.

On December 10, 1936, the same plaintiff, Sayde E. Fitzpatrick, as administratrix,

[16 N.E.2d 765]

filed a suit in said court against the Wabash Railway Company for damages alleged on account of the wrongful death of her husband, John J. Fitzpatrick on January 18, 1936. The complaints in all three suits were very similar, averring that the accident causing the death of plaintiff's husband and two minor children occurred at the Wabash Railway crossing at the Village of Campus, Livingston County; that at the time of the accident the husband of the administratrix, John J. Fitzpatrick, and her two minor sons, John Q. Fitzpatrick and Francis Kenneth Fitzpatrick were passengers in the same automobile.

On November 2, 1936, the Wabash Railway Company and A. F. McDonald, one of the defendants who was the engineer on defendant's train at the time and place aforesaid, filed their separate answers. They denied each and every allegation in plaintiff's complaint by simply stating “Defendant denies Paragraph One, Count One. Defendant denies Paragraph Two, Count One,” and so on to each and every paragraph in plaintiff's bill of complaint. On November 10, 1936, the plaintiff entered a motion to strike the answer because the same was ambiguous, indefinite, and uncertain. On February 11, 1937, the motion to dismiss the defendant's answers was sustained and leave granted to file amended answers within ten days. The amended answers were filed February 20, 1937. Each denies the specific allegation of the complaint that the Wabash Railway Company at the time of the accident in question was operating a train by defendant's agent and servant A. F. McDonald, while on the defendant's tracks, etc., which caused the accident complained of.

After this answer was filed the plaintiff entered a motion to add as parties defendant, Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers of the Wabash Railway Company, a corporation. On March 22, 1937, the court granted leave to plaintiff to make this amendment. On April 18, 1937, the receivers of the railway company entered a motion to dismiss the suit as against them for want of jurisdiction, because they had not been made parties to the action within one year's time after the accident which caused the death of plaintiff's intestate. The court sustained this motion and dismissed the suit. It is from this order of dismissal that the several appeals have been prosecuted.

The only question involved in these suits is whether a suit can be maintained against the receivers of said railway company after the suits had been started against the Wabash Railway Co., a corporation, and proper service had upon that company, by substituting them as parties defendants, after the statutory period has expired for bringing such suits. Rev.St.1937, c. 70, § 2. Our attention has not been called to any Supreme or Appellate Court decision of Illinois or any other State, in which this identical question has been decided. There are numerous cases both in our own courts and other states, and in the U. S. Supreme Court, in which similar questions have been involved. In the case of Proctor v. Wells Bros. Co., 262 Ill. 77, 104 N.E. 186, Ann.Cas.1915B, 273, Proctor, who as a workman, for whom he supposed was Wells Bros. Company, a corporation, was injured and he brought suit against the company under title of “Wells Bros. Company, a corporation.” A summons was issued upon Wells Brothers Company, a corporation. To this the defendant filed its answer and denied that Proctor was employed by them. After the statutory period for bringing such action had expired, it developed that Wells Brothers Company, a corporation, was not the employer of Proctor, but Wells Brothers Company of New York, which was an entirely different corporation from the original defendant, was such employer. Wells Brothers Company of New York was made party defendant to the suit and judgment was rendered against...

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2 cases
  • Fitzpatrick v. Pitcairn, 24968.
    • United States
    • Supreme Court of Illinois
    • April 12, 1939
    ...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 aff......
  • People ex rel. First Nat. Bank of Blue Island v. Kingery, 24306.
    • United States
    • Supreme Court of Illinois
    • October 5, 1938
    ...statute any different construction would be to annul them. In an additional brief filed by defendant, it is urged that the petition for [16 N.E.2d 764]mandamus is defective because it does not aver there was any money in the hands or under the control of the defendant, which was available f......

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