George B. Swift Co. v. Gaylord

• Decision Date: 23 October 1907
• Citation: George B. Swift Co. v. Gaylord, 229 Ill. 330, 82 N.E. 299 (Ill. 1907)
• Parties: GEORGE B. SWIFT CO. v. GAYLORD.
• Court: Illinois Supreme Court

229 Ill. 330

82 N.E. 299

GEORGE B. SWIFT CO.

v.GAYLORD.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Rock Island County; E. C. Graves, Judge.

Action by Lucian E. Gaylord against the George B. Swift Company and others. Judgment in favor of plaintiff against the named defendant was affirmed by the Appellate Court, and said defendant appeals. Reversed and remanded.

Jackson, Hurst & Stafford, for appellant.

J. B. & J. L. Oakleaf and J. T. & S. R. Kenworthy, for appellee.

The circuit court of Rock Island county rendered a judgment for $5,000 in favor of appellee against appellant for negligently causing the death of plaintiff's intestate, and that judgment has been affirmed by the Appellate Court. The action was brought to the January term, 1904, of said circuit court against this appellant, the Chicago, Rock Island & Pacific Railway Company, and the Rock Island Improvement Company. The original declaration consisted of a single count, which alleged that the death occurred on September 22, 1903. After the expiration of one year from that date the plaintiff filed an amended declaration of seven counts, to which the defendants filed a plea of not guilty and also a special plea to each count setting up the one-year statute of limitations. The plaintiff demurred to each of the special pleas. This demurrer having been overruled, he then filed a second amended declaration, consisting of four counts, to which the defendants again pleaded the general issue and special pleas of the statute of limitations. The plaintiff again demurred to each of the special pleas. This demurrer was sustained, and a jury was impaneled for the trial of the cause. During the progress of the trial plaintiff, by leave of the court, dismissed his suit against the other defendants, and filed another amended declaration of four counts against appellant alone, to which appellant filed a plea of the general issue and special pleas of the statute of limitations. Plaintiff demurred to the special pleas, his demurrer was sustained, and the trial proceeded, with the result above stated.

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

It is contended that the court erred in sustaining the demurrer to the pleas of the statute of limitations filed to the amended declaration. The statute provides that every action to recover damages for the death of a person caused by another's wrongful act shall be commenced within one year after such death, and, the amended declaration in this case having been filed more than one year after the death of plaintiff's intestate, the action was barred, unless the cause of action set forth in the amended declaration was the same as that declared upon in the original declaration. Counsel for appellant earnestly insist that the causes of action set up in the several counts of the amended declaration are entirely new and distinct from that declared upon in the one count of the first declaration. It is well settled that if a suit is brought in apt time, and a declaration duly filed stating the cause of action, though imperfectly, subsequent amendments, though filed after the statute of limitations has run, will not be barred thereby, if they amount to no more than a restatement, in a different form, of the cause of action originally declared upon. North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340. But if the amended counts set up an entirely new and distinct cause of action the statute of limitations may be successfully pleaded thereto. Phelps v. Illinois Central Railroad Co., 94 Ill. 548;Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N. E. 266.

The first declaration in this case alleged that the defendants were engaged in the business of erecting a building, and the deceased was in their employ, and the defendants were in the act of hoisting lumber from the ground to the top of said building, using a derrick for that purpose, it being the duty of the deceased to receive the lumber on the top of the building, and while he was in the act of performing such duty, exercising due care, the derrick gave way and broke, by means whereof plaintiff's intestate was then and there instantly killed. The declaration then proceeded: ‘And the plaintiff further avers that said defendants, a short time prior to the killing of plaintiff's intestate as aforesaid, had erected and constructed said derrick or hoist for the purpose of hoisting lumber as aforesaid, and in the erection of said derrick or hoist, and the placing of the same, had negligently omitted to properly place, fasten, and secure the same, in this: They had neglected and omitted to properly and securely place the arm of said derrick or hoist which held the pulley over which the rope attached to said derrick or hoist ran, so that, when applying the power to hoist the said lumber as aforesaid, and while said lumber was about up to the top of said building, ready for the plaintiff's intestate to take when so hoisted, the said derrick or hoist gave way, and the said lumber and derrick fell upon the plaintiff's intestate,’ etc. The amended declaration, upon which the trial was had, as already stated, contained four counts. The first alleged that the defendant carelessly and negligently built said derrick, and omitted to properly place, fasten, and secure the same, so that, when the weight of the lumber to be hoisted thereby was placed upon the arm of the derrick, it broke and gave way, and the defendant had neglected and omitted to properly secure the arm of said derrick, so that, when the power was applied to hoist the lumber, it gave way. The second averred that the negligence of the defendant consisted in not sufficiently bracing, securing, nailing, bolting, and fastening the beam of said hoisting apparatus, so as to prevent the same from falling when a load to be hoisted was heavy, or might be caught, as it was liable to do, upon or against the said iron cross-beams when being hoisted as aforesaid. The third sets up that the defendant was negligent and careless in fastening and constructing the beam of said derrick, and that the same was not safely and properly braced, nailed, bolted, and fastened to sustain the weight of the hoisting of said timbers and lumber in the manner and form the same were being hoisted as aforesaid, and was not sufficient to sustain the weight that would come upon the same in the event said timbers and lumber should be caught on said iron cross-beams while being so hoisted in the manner and form aforesaid. And the fourth alleged that the defendant caused and permitted said derrick or hoisting apparatus to be negligently and carelessly built and constructed, in this: That said derrick beam, and its supports and braces, were not sufficiently and properly braced, bolted, placed, nailed, built, adjusted, and fastened, so as to prevent the same from falling when in use in the hoisting of said lumber as aforesaid. It will be seen that each of these counts rests upon the alleged failure of the defendant to properly nail, brace, and fasten the arm of said derrick. In cases of this kind the cause of action is the act or thing done or omitted to be done by one which confers the right upon another to sue; in other words, the act or wrong of the defendant towards the plaintiff which causes a grievance for which the law gives a remedy. Swift & Co. v. Madden, 165 Ill. 41, 45 N. E. 979. Here the omission of duty charged against the defendant, both by the original and amended declarations, was the failure to so construct the derrick in use upon the building as to make it reasonably suitable and safe for the use for which it was intended, and the particular negligence was the failure to have the arm so securely fastened that it would not give way to the pressure upon it.

Special attention is called by appellant's counsel to the use of the word ‘place,’ in the first declaration, in connection with the arm of the derrick, as limiting the issue to the single point of negligence in placing the arm of the derrick. The words used are, ‘neglected and omitted to properly and securely place,’ and they mean that the defendant neglected to properly put the derrick in position in a safe manner, secure against the strain to which it might be subjected. Under this allegation any evidence would have been admissible which was admissible under the amended declaration or which was admitted on the trial. Evidence that the snatch block on the ground, instead of being directly under the derrick, was on one side, and that the side which was not braced, was admissible, not as evidence of an independent act of negligence, but as showing the additional strain to which the arm would thereby be subjected and the necessity that it should be ‘securely placed.’ The counts in the amended...