Handtoffski v. Chicago Consol. Traction Co.

• Decision Date: 05 October 1916
• Docket Number: No. 10160.,10160.
• Citation: 274 Ill. 282,113 N.E. 620
• Parties: HANDTOFFSKI v. CHICAGO CONSOL. TRACTION CO.
• Court: Illinois Supreme Court

274 Ill. 282

113 N.E. 620

HANDTOFFSKI

v.CHICAGO CONSOL. TRACTION CO.

No. 10160.

Supreme Court of Illinois.

June 22, 1916.

Rehearing Denied Oct. 5, 1916.

Error to Branch B. Appellate Court, First District, on Appeal from Superior Court, Cook County; Charles A. McDonald, Judge.

Action by Frank Handtoffski against Marshall E. Sampsell, receiver of the Chicago Union Traction Company, in which it was ordered that the Chicago Consolidated Traction Company be made an additional party defendant, and in which the suit against the receiver was dismissed. From a judgment of the Appellate Court (192 Ill. App. 136), affirming a judgment for the plaintiff, defendant's petition for certiorari was allowed and the record brought up for review by a writ of error. Reversed and remanded.

Frank L. Kriete and Weymouth Kirkland, both of Chicago (W. W. Gurley and J. R. Guilliams, both of Chicago, of counsel), for plaintiff in error.

Emery S. Walker and Julius Limbach, both of Chicago, for defendant in error.

DUNCAN, J.

Defendant in error, Frank Handtoffski, herein designated as plaintiff, brought an action in case on September 2, 1907, in the superior court of Cook county, against Marshall E. Sampsell, receiver of the Chicago Union Traction Company, for personal injuries received by him, alleged in the declaration to have been caused by the negligence of said company's agents in suddenly starting with a jerk a certain car which plaintiff was then boarding as a passenger, and by the negligence of said receiver in not keeping the handle bars which plaintiff caught hold of in boarding said car securely fastened and tightened. On September 23, 1910, more than two years after the happening of plaintiff's injury, alleged to have occurred August 28, 1907, on motion of plaintiff's counsel it was ordered that the Chicago Consolidated Traction Company, plaintiff in error and hereinafter referred to as the defendant, be made an additional party defendant, and a summons in case was served on the defendant. On motion of the plaintiff's counsel the form of action was changed from case to assumpsit. The summons was changed accordingly, and on September 30, 1910, an amended declaration in assumpsit of three counts was filed against Sampsell, as receiver, and the Chicago Consolidated Traction Company. On June 13, 1913, the suit was dismissed as to said receiver, and the amended declaration was amended so as to leave the Chicago Consolidated Traction Company as the sole defendant. The amended declaration as amended averred, in substance, that the defendant, the Chicago Consolidated Traction Company, was a common carrier of passengers for hire and was the owner and operating divers lines of street railway in Chicago; that on August 28, 1907, in consideration that the plaintiff would take passage in a certain street car operated by defendant in Elston avenue, the defendant undertook and promised to safely carry the plaintiff and to use due care and diligence in carrying him; that plaintiff relied on said promise and undertaking, became a passenger on said car, and paid to defendant the agreed fare; that the defendant did not regard its said promise and undertaking, but wholly neglected and refused to do so, and carelessly and negligently used said car with the handle bar loose, unstable, and out of repair, and started said car with a jerk, whereby the plaintiff was thrown from said car to the ground with great violence, and was greatly bruised and injured, etc., to the damage of the plaintiff of $25,000. The second and third counts were the same as the first, except a slight variation as to the negligence charged to defendant. To the amended declaration the defendant filed a plea of the general issue, a plea of not guilty, and a special plea of the statute of limitations of two years. The plaintiff demurred to the plea of the statute of limitations, and the court sustained the demurrer. The defendant elected to stand by its plea. On the trial of the cause the jury returned a verdict of $9,200, and the court entered judgment on the verdict. On appeal the judgment was affirmed by the Branch B Appellate Court for the First District. A petition for certiorariwas allowed by this court, and the record is brought here for review by a writ of error.

The only point urged for a reversal in the Appellate Court was, and the only error argued in this Court is, that the lower court improperly sustained the demurrer to the plea of the statute of limitations, except that it is also assigned here as error that the Appellate Court erred in affirming the judgment of the lower court. The real question involved is whether section 14 or section 15 of the limitation act applies-that is to say, whether plaintiff's action was barred in two years or in five years from the time the cause of action accrued.

Sections 12, 13, 14, and 15 of the Limitation Act (Hurd's Stat. 1913, p. 1576) read as follows:

‘Sec. 12. The following actions can only be commenced within the periods hereinafter prescribed, except when a different limitation is prescribed by statute:

‘Sec. 13. Actions for slander or libel shall be commenced within one year next after the cause of action accrued.

‘Sec. 14. Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.

‘Sec. 15. Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.’

It will be observed that in sections 13, 14, and 15 the limitations are not based upon the form of the particular action named, but on the particular injury sued for, or upon the obligation out of which the action grows. The provisionsof section 12 are to be considered and read as a part of sections 13, 14, and 15. Section 15, so far as it is material to this controversy, should be read as follows: Actions on unwritten contracts, express or implied, shall be commenced within five years next after the cause of action...