Vogrin v. American Steel & Wire Co.

• Decision Date: 05 June 1914
• Docket Number: No. 8954.,8954.
• Citation: Vogrin v. American Steel & Wire Co., 263 Ill. 474, 105 N.E. 332 (Ill. 1914)
• Court: Illinois Supreme Court
• Parties: VOGRIN v. AMERICAN STEEL & WIRE CO.

263 Ill. 474

105 N.E. 332

VOGRIN

v.AMERICAN STEEL & WIRE CO.

No. 8954.

Supreme Court of Illinois.

April 23, 1914.

Rehearing Denied June 5, 1914.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; Dorrance Dibell, Judge.

Action by Joseph Vogrin against the American Steel & Wire Company. From a judgment for defendant (179 Ill. App. 245), plaintiff appeals. Reversed and remanded, with directions.Barr, McNaughton & Barr, of Joliet, for appellant.

Knapp & Campbell, of Chicago, Snapp & Heise, of Joliet (John R. Cochran, of Chicago, of counsel), for appellee.

CRAIG, J.

This was an action on the case to recover damages for personal injuries, brought by appellant against appellee in the circuit court of Will county. The original declaration consisted of one count, filed on September 9, 1910, to the September term, 1910. Later five additional counts were filed. General and special demurrers were filed to the original declaration and also to the five additional counts, and were sustained. After more than two years had elapsed since the cause of action accrued, the appellant, by leave of court, filed an amended declaration of three counts. To each of said counts appellee filed pleas of the general issue and the statute of limitations. The court having overruled the demurrers of appellant to the plea of the statute of limitations, appellant elected to stand by his demurrers, and a final judgment was entered. On appeal to the AppellateCourt the judgment of the trial court was affirmed, and a certificate of importance granted to this court.

[1][2] It is insisted that the original declaration and the five additional counts did not state a cause of action, in that they entirely failed to state any facts showing that the plaintiff was in the discharge of his duties to his employer at the time and place when and where he was injured, and that the cause of action set up in the amended declaration was a new cause of action-one that had never been stated before-and that therefore the plea of the statute of limitations was a good defense. The charge in the original declaration is, in so far as its averments are material, that on the 18th day of March, 1910, the defendant was engaged in the manufacture of wire, nails, etc., and was possessed of and operating certain mills, runways, and premises, and that the plaintiff on the day aforesaid and for a long time prior thereto, was in the employ of the defendant as an oiler, and that as such oiler, in the discharge of his duty, he was then and there required to pass through, along, and about said buildings, mills, runways, and premises, etc., and that the defendant so carelessly and negligently constructed, used, managed, and operated said buildings, mills, runways, and premises that by, through, and in consequence of the carelessness and negligence of the defendant in that behalf the plaintiff, while passing by and along one of said buildings, mills, and runways on said premises, in the exercise of ordinary care for his own safety, was struck by a large bundle of wire and injured, etc. We think that by the use of the words ‘then and there’ in this count of the declaration, and the allegation immediately following stating what appellant's duties were, it charges, by reference sufficiently to admit of proof of that fact on the trial, that at the time and place of his injury the appellant was in the discharge of his duties as an employé of the appellee, although the charge is not made in the language most usually employed in common-law pleadings for that purpose. The words ‘then and there’ refer to the time and place last specified, unless some phrase is used in connection therewith which shows that a different reference was intended. 28 Am. & Eng. Ency. of Law (2d Ed.) 130; Palmer v. People, 138 Ill. 356, 28 N. E. 130,32 Am. St. Rep. 146. This is also the rule in criminal pleadings, where the rule requiring accuracy is stronger than in pleadings in civil cases. Although a demurrer was sustained to this count and to the five additional counts filed before the statute of limitations had run, they are still a part of the record and files in the case, and may be referred to for the purpose of ascertaining whether or not the additional counts state a new cause of action or are a restatement of the same cause of action in a more perfect manner. Shaughnessy v. Holt, 236 Ill. 485, 86 N. E. 256,21 L. R. A. (N. S.) 826;North Chicago Street Railroad Co. v. Aufmann, 221 Ill. 614, 77 N. E. 1120,112 Am. St. Rep. 207.

The charges in the first, fourth, and fifth additional counts, in so far as they are material here, were, in substance, as follows: That on the 18th of March, 1910,...