Savant v. Superior Coal Co.
| Decision Date | 18 February 1955 |
| Docket Number | Gen. No. 9970 |
| Citation | 5 Ill.App.2d 109,125 N.E.2d 148 |
| Parties | Dominic SAVANT and Catherine Savant, Plaintiffs-Appellees, v. SUPERIOR COAL COMPANY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Samuel O. Smith, Jr., Carlinville, Miles Gray, Springfield, for appellant.
J. E. Wenzel, D. A. McGrady, Gillespie, for appellees.
This is an appeal by Superior Coal Company, a corporation, defendant in the court below, from a judgment entered by the Circuit Court of Macoupin County after jury verdict in favor of the plaintiffs, Dominic Savant and Catherine Savant.
The complaint, filed on January 17, 1952, alleged that on February 3, 1950 plaintiffs were the owners of a residence property in the city of Benld, Macoupin County, Illinois where they acquired on June 28, 1944 and occupied thereafter; that on said last mentioned date the premises were improved with a substantial, well-constructed dwelling house with plastered walls and with basement and walks, and the premises were graded so that water falling thereon quickly flowed off and the basement was drained by tile with good fall connections; that prior to February 3, 1950 Superior Coal Company, owners of the coal underlying the surface and real estate adjacent thereto, removed the same and in so doing failed to leave sufficient support for the surface, and as a result the surface was caused to sink, drop and subside a distance of two or three feet; 'that the subsidence * * * is continuing and will continue; that on December 29, 1951 the subsidence grew in strength in such manner that the entire home of the plaintiffs' was practically demolished. The defendant filed a motion to strike the complaint, alleging that it was defective in failing to specify the date of the first or original subsidence. On January 22, 1953 there was filed an amended complaint, in substance the same as the original, but alleging that plaintiffs' 'real estate and real estate adjacent thereto * * * was on July 15, 1951 thereby caused to sink, drop and subside a distance of two or three feet, and that the subsidence * * * has continued from July 15, 1951 and that on December 29, 1951 the subsidence grew in strength' in such manner that their home was practically demolished. The defendant filed an answer denying in general terms the allegations of the amended complaint.
It is admitted by both parties that the cause was tried in April, 1953 and in order to make the pleadings conform to the evidence, plaintiffs obtained leave at the close of their case on April 23, 1953 to file a second amended complaint. This pleading, also similar to the original and the first amended complaint, alleged that on July 15, 1947 through December 29, 1951 the plaintiffs were the owners of the premises in question; that prior to July 15, 1947 the defendant being possessed of the coal underlying the surface removed the same, and in so doing failed to leave sufficient support for the surface, and as a result thereof said real estate and others adjacent thereto was on July 15, 1947 caused to sink, drop, and such subsidence 'has continued from July 15, 1947 and that until and on December 29, 1951 the subsidence grew in strength in such manner' that the home of the plaintiffs situated on said land was practically demolished. The jury disagreed and was discharged.
Later on Setember 15, 1953 defendant filed a motion to strike the second amended complaint, charging that the damages resulting from the subsidence in 1947 were barred by the Statute of Limitations. The motion to strike was overruled and a general answer to the second amended complaint was filed. Paragraph 11 thereof charged that the subsidence on July 15, 1947 and damage resulting therefrom was barred by the Statute of Limitations. A motion to strike that paragraph was sustained.
The first subsidence occurred, according to the evidence for plaintiff, on August 11, 1947 resulting in considerable damage to the four-room residence located on the property here involved. Defendant moved to strike this testimony on the theory that such subsidence was a separate cause of action from any other subsidence and was barred by the Statute of Limitations because occurring more than five years prior to the filing of the second amended complaint. In each instance the motion to strike was overruled.
The question here presented is whether under Sec. 49 of the Civil Practice Act (Par. 170, Ch. 110, Ill.Rev.Stat.1953) the cause of action asserted in the second amended complaint 'grew out of the same transaction or occurrence set up in the original complaint'. If the answer is in the affirmative the second amended complaint relates back to the date of the filing of the original complaint.
Plaintiffs' complaint alleged ownership of the surface, and removal of the coal by the defendant leaving insufficient support and a subsidence by reason thereof resulting in damage to their property. It stated a cause of action but was defective in that it failed to set forth when the first subsidence occurred. The complaint charged that the real estate and real estate adjacent thereto was 'thereby caused to sink, drop and subside' and the subsidence continued, and on 'December 29, 1951 the subsidence grew in strength'. It should have alleged when the first subsidence occurred and it was this defect which the defendant sought to reach by its motion to strike. If no motion had been made, the plaintiffs could have proven any and all subsidences that occurred to their premises within five years before filing of the complaint. Wanless v. Peabody Coal Company, 294 Ill.App. 401, at page 410, 13 N.E.2d 996. The pleading in such case would have been good after verdict. Gustafson v. Consumers Sales Agency, 414 Ill. 235, 241, 110 N.E.2d 865; Lasko v. Meier, 394 Ill. 71, 75, 67 N.E.2d 162.
The complaint and the first and second amended complaints were each based upon a subsidence due to the removal of the coal by the defendant without leaving sufficient and adequate support for the surface. The cause of action, however, did not arise and the Statute of Limitations did not commence running until there was a subsidence. Wanless v. Peabody Coal Company, 294 Ill.App. 401, 13 N.E.2d 996.
The original complaint by charging the condition of the property before any subsidence occurred clearly indicates an intention by the suit to recover damages to the property as the result of any and all subsidences that occurred prior to the commencement of the suit.
The second Paragraph of Sec. 46 of the Civil Practice Act provides as follows: 'The cause of action, cross demand or defense set up in any amended pleading shall not be barred by, lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted when such condition precedent has in fact been performed, and for the purpose of preserving as aforesaid such cause of action, cross demand or defense set up in such amended pleading, and for such purpose only, any such amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.'
This paragraph was considered at length in Metropolitan Trust Company v. Bowman Dairy Co., 369 Ill. 222, at page 229, 15 N.E.2d 838, at page 842 and the Court there say: ...
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