Lincoln Park Coal & Brick Co. v. Wabash Ry. Co.

• Decision Date: 19 February 1930
• Docket Number: No. 19700.,19700.
• Citation: 170 N.E. 8,338 Ill. 82
• Parties: LINCOLN PARK COAL & BRICK CO. v. WABASH RY. CO.
• Court: Illinois Supreme Court

338 Ill. 82

170 N.E. 8

LINCOLN PARK COAL & BRICK CO.

v.WABASH RY. CO.

No. 19700.

Supreme Court of Illinois.

Dec. 20, 1929.

As Modified on Denial of Rehearing Feb. 19, 1930.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Sangamon County; Charles G. Briggle, Judge.

Action by the Lincoln Park Coal & Brick Company, for use of the United States Fidelity & Guaranty Company, against the Wabash Railway Company. Judgment for defendant, was affirmed by the Appellate Court (265 Ill. App. 323), and plaintiff brings certiorari.

Reversed and remanded, with directions.

Johnson & Pefferle and Thomas W. Hoopes, all of Springfield, for plaintiff in error.

Allen & Converse, of Springfield, for defendant in error.

HEARD, J.

This cause is here, by leave of this court, on certiorari, to review a judgment of the Appellate Court for the Third District (254 Ill. App. 323) affirming a judgment of the circuit court of Sangamon county in favor of defendant in error, the Wabash Railway Company, and against plaintiff in error, the Lincoln Park Coal & Brick Company, for the use of the United States Fidelity & Guaranty Company, in bar of its action and for costs of suit.

The case was instituted in the name of the Lincoln Park Coal & Brick Company as plaintiff. In the original declaration it was alleged, among other things, that the plaintiff, the Lincoln Park Coal & Brick Company, was engaged in the coal business, and that Charles T. Hale on January 14, 1925, was in its employ and was killed while engaged in duties arising out of and in the course of his employment, by the negligence of the Wabash Railway Company, defendant; that both plaintiff and Hale were subject to the provisions of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1929, c. 48, §§ 138-172); that on May 8, 1925, the Industrial Commission awarded to Loretta Hale, widow, the sum of $7.69 per week for the period of 416 Weeks, as provided by said act; that plaintiff became liable to pay said award, and did subsequently, from time to time, make such payments as they became due and owing, and that said award in full amounts to the sum of $3,100.04, all of which plaintiff is liable to pay; that under and by virtue of section 29 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1929, c. 48, § 166) the defendant, the Wabash Railway Company, became liable to the plaintiff for reimbursement of the money so expended and to be expended by reason of the death of Hale. On December 22, 1927, leave was granted to substitute as party plaintiff the ‘Lincoln Park Coal and Brick Company, for the use of the United States Fidelity and Guaranty Company,’ in lieu of the Lincoln Park Coal & Brick Company, and leave was also granted to file an amended declaration. The amended declaration is substantially in the language of the original declaration and uses the word ‘plaintiff’ throughout the declaration, but concludes with the following additional paragraph:

‘Plaintiff further avers that prior to January 1, 1925, that the Lincoln Park Coal and Brick Company was issued a policy by the said United States Fidelity and Guaranty Company, and which policy was in force on January 14, 1925, and in which said policy the said United States Fidelity and Guaranty Company agreed to protect the said Lincoln Park Coal and Brick Company from any and all loss that it might sustain under and by virtue of the Workmen's Compensation act of the State of Illinois; that in and by said policy and application for said policy the said Lincoln Park Coal and Brick Company agreed that the said United States Fidelity and Guaranty Company would be subrogated to any and all rights of the Lincoln Park Coal and Brick Company against any third parties wherein the said United States Fidelity and Guaranty Company became liable for and did pay losses occurring in the course of the operation of the said Workmen's Compensation act and which said losses and liabilities were created by a third party; that as the result of the aforesaid policy of insurance the United States Fidelity and Guaranty Company became secondarily liable to pay, and did pay and is continuing to pay, the award described in the aforesaid declaration, and that under and by virtue of the aforesaid application and policy that the United States Fidelity and Guaranty Company become subrogated to the said Lincoln Park Coal and Brick Company.’

To the amended declaration was attached an affidavit to the effect that the matters and things contained therein were true. To the amended declaration a demurrer was filed and sustained, and plaintiff in error abiding by its declaration, judgment was rendered in favor of defendant in error.

It is urged by defendant in error that the amended declaration presents a new cause of action and is barred by the Injuries Statute because it was not filed within one year after the death of the employee, Hale.

On July 6, 1925, there went into effect an amendment to section 18 of the Practice Act, providing: ‘Any proceeding or suit at law or in equity hereafter brought under or by virtue of the subrogation provision or provisions of any contract or under or by any subrogation by operation of law shall be brought either in the name of, or for the use of the subrogee: Provided the subrogee shall in his pleading oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide subrogee and set forth how and when he became the subrogee.’ Laws of 1925, p. 504.

It is the settled doctrine of this court that if an original declaration is filed in apt time, stating a cause of action, though imperfectly and defectively, 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 or better form, of the cause of action originally...