Severin v. Eddy
| Decision Date | 30 September 1869 |
| Citation | 1869 WL 5410,52 Ill. 189 |
| Parties | WILLIAM SEVERIN et al.v.WILLIAM H. EDDY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
The facts in this case are fully stated in the opinion.
Mr. D. P. WILDER, for the plaintiffs in error.
Mr. W. T. BURGESS, for the defendant in error.
This was an action on the case, brought by plaintiffs in error in the Cook circuit court, to recover for injuries sustained by Caroline Severin, the wife of William Severin, by falling through a hatchway door in the sidewalk abutting upon the premises of defendant in error. It is averred in the declaration that the hatchway had been left in an unsafe condition through the default and negligence of defendant in error, whereby Catharine Severin had received the injuries complained of, causing great pain and suffering, and crippling her for life.
To the declaration, defendant filed two special pleas. They aver that plaintiffs in error, in 1866, sued the city of Chicago to recover for the same injuries; that the city gave notice of the pendency of the suit to defendant, and that he aided in the defense of that suit, and that on a trial before a jury they found a verdict in favor of the city, upon which a judgment was rendered that the city go hence without day, and recover costs against plaintiffs in error; that the judgment remains in full force, unreversed and in nowise annulled. Plaintiffs filed a demurrer to these pleas, which was overruled by the court, and plaintiffs in error failing to answer the pleas, judgment was rendered against them in bar of the action.
Do these pleas present a defense to this action? Was the judgment in favor of the city, and to which defendant in error was not a party, a bar to a recovery in this case? We think not. If it could be conceded that defendant in error and the city were joint tort feasors, still it would not follow that he could plead that judgment in bar of this action. The rule is well established that a plaintiff may maintain several actions against a number of persons who commit a trespass or other tort jointly, and may recover several judgments, but can have but one satisfaction. If a number of persons jointly commit a tort they are liable either jointly or severally, because the tort is considered the act of each person engaged in its perpetration, and the plaintiff may elect to sue jointly or severally. Livingston v. Bishop, 1 Johns. R. 290; Thomas v. Rumsey, 6 ib. 31; Chit. Pl. 86-87. It then follows that even if the city and defendant in error were joint tort feasors, plaintiffs in error had the election to sue them separately, and, if so, the failure to obtain judgment against either would form no bar to a recovery against the other.
When the city gave notice to defendant in error, it was for the purpose of concluding him from requiring the city to prove the cause of action in case a recovery was had against the city, and a suit should afterwards be brought against defendant in error. Had a judgment been obtained in that action against the city, defendant in error, in a suit by the city against him to recover the...
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