Heimberger v. Elliot Frog & Switch Co.

• Decision Date: 29 June 1910
• Citation: 245 Ill. 448,92 N.E. 297
• Court: Illinois Supreme Court
• Parties: HEIMBERGER v. ELLIOT FROG & SWITCH CO.

245 Ill. 448

92 N.E. 297

HEIMBERGER

v.ELLIOT FROG & SWITCH CO.

Supreme Court of Illinois.

June 29, 1910.

Error to Appellate Court, Fourth District, on Appeal from City Court of East St. Louis; N. J. N. Moyers, Judge.

Action by H. R. Heimberger, administrator of Thomas Durkin, against the Elliot Frog & Switch Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, where the judgment was reversed without remanding, and plaintiff brings the case to the Supreme Court by certiorari. Reversed and remanded to the Appellate Court with directions.

Webb & Webb and D. J. Sullivan, for plaintiff in error.

Percy Werner and Wise, McNulty & Keefe, for defendant in error.

CARTER, J.

Thomas Durkin, a young man 17 years of age, was employed in defendant in error's shops, and while he was engaged on May 10, 1905, in moving a heavy frog, certain parts of a hoist fell and killed him. Plaintiff in error, the administrator of his estate, brought suit August 16, 1905, under the injuries act, for the benefit of the next of kin, to recover damages for his death, alleged to have been caused by the negligence of defendant in error. The case was continued to the December term, 1905, and on January 8, 1906, plaintiff in error took a voluntary nonsuit. February 19, 1906, plaintiff in error commenced a second suit, and on that day a declaration was filed and summons served. Defendan in error having filed a plea of not guilty, the suit was dismissed by the court March 28, 1906, on failure of plaintiff in error to file a bond for costs, in compliance with the rule theretofore entered. A third suit was commenced April 4, 1906, and afterwards set for trial January 7, 1907, at which time plaintiff in error applied for a continuance. He was allowed 30 minutes by the court to file an affidavit, which he failed to do, and the suit was then dismissed for want of prosecution. On the same day plaintiff in error commenced this fourth suit for the same cause of action. Defendant in error filed a plea of the general issue and also a special plea of the statute of limitations, alleging therein that the cause of action had not accrued within one year next before the commencement of the suit. To the general issue plaintiff in error filed a similiter, and to the plea of limitations a special replication alleging that the action ought not to be barred because he had brought suit April 4, 1906, within one year after the action accrued, and that judgment by involuntary nonsuit was rendered against him in said suit January 7, 1907, and that within one year thereafter, to wit, on January 7, 1907, he began this suit for the same cause of action. A demurrer filed by defendant in error to the replication to the second plea was overruled, and thereupon defendant in error filed a rejoinder to the replication, setting out the judgment by voluntary nonsuit entered January 8, 1906, and alleging that the present suit was not commenced within one year after the death of Durkin. A demurrer filed by the plaintiff in error to this rejoinder was sustained by the court. Defendant in error excepted to this last ruling of the court and elected to abide by its rejoinder. The trial under the general issue before the jury resulted in a verdict of $3,000 in favor of plaintiff in error and judgment was entered thereon. On appeal the Appellate Court held that paragraph 25 of the limitations act (Hurd's Rev. St. 1909, c. 83) could not properly apply to a suit commenced under the injuries act (Hurd's Rev. St. 1909, c. 70), and that the trial court erred in sustaining the demurrer to the rejoinder. On a showing in that court that there were no facts warranting the replication other than those found in the record, the Appellate Court reversed the judgment of the trial court without remanding. The case was thereupon brought to this court for further review by a petition for certiorari.

The first question presented for our consideration is whether defendant in error waived its right to rely on the statute of limitations by filing a rejoinder to the replication to the second plea after its demurrer to that replication had been overruled. In common-law actions ‘it was always necessary to plead the statute of limitations specially.’ 1 Chitty's Pl. (16th Am. Ed.) 649, *526. The defense of this statute cannot be raised by demurrer. Langan v. Drainage District, 239 Ill. 430, 88 N. E. 182;Gebhart v. Adams, 23 Ill. 397, 76 Am. Dec. 702;Norton v. Kumpe, 121 Ala. 446, 25 South. 841;Gray v. Grand Trunk Western Railway Co., 156 Fed. 736, 84 C. C. A. 392; 25 Cyc. 1396. And this is so even when it appears on the face of the declaration that the limitation has expired. Gunton v. Hughes, 181 Ill. 132, 54 N. E. 895; 13 Ency. of Pl. & Pr. 200. In Wall v. Chesapeake & Ohio Railroad Co., 200 Ill. 66, 65 N. E. 632, which was an action by the administratrix, under the injuries act, to recover damages for the death of her intestate by reason of the negligence of said railroad company, this court held that the defense of the statute of limitations could not be raised by demurrer, even though the declaration showed on its face that more than two years had elapsed between the time of the injury and the time of bringing suit. It is urged here, however, that the bringing of an action of this kind within the year provided for in the present injuries act is a condition precedent and not a limitation, and that the plea, and not the declaration, shows that the cause was not started within a year. In the case last cited this court held that the bringing of such action within the time allowed by the statute may or may not be a condition precedent, depending on the special facts of each case.

The nonsuit set out in the rejoinder to the said replication was voluntary and taken within one year after the death of the deceased. It cannot be seriously contended that the law fixes any limit on the number of successive suits that may be started within the year allowed by the injuries act. During that period it can make no difference whether the nonsuit be voluntary or involuntary. The distinction between voluntary and involuntary nonsuits only becomse...