Wanless v. Peabody Coal Co.
| Decision Date | 05 April 1938 |
| Docket Number | Gen. No. 9060. |
| Citation | 294 Ill.App. 401,13 N.E.2d 996 |
| Parties | WANLESS v. PEABODY COAL CO. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sangamon County; Walter W. Wright, Judge.
Action by Fred W. Wanless against the Peabody Coal Company to recover damages for subsidence of portions of the surface of plaintiff's land because of defendant's removal of coal underlying it. Judgment for plaintiff, and defendant appeals.
Reversed and remanded. Provine & Williams, of Taylorville, and Clark H. Miley, of Springfield, for appellant.
Doyle, Sampson & Griffin, of Springfield ( C. Terry Lindner and Alfred F. Newkirk, both of Springfield, of counsel), for appellee.
This is an appeal from a judgment recovered by plaintiff-appellee, Fred W. Wanless, against defendant-appellant, Peabody Coal Company, in the circuit court of Sangamon county, said suit having been commenced by the issuance of a summons and filing of a complaint by plaintiff on April 3, 1935.
The original complaint consisted of one count. The court granted plaintiff leave to file an amended complaint consisting of one count, in which he alleged that on December 31, 1917, and since said date, he has been the owner of 160 acres of land, and that, from June 22, 1926, the defendant has been possessed of a certain coal mine, known as mine No. 57, in Sangamon county, Ill., and was possessed of the coal underlying the land of plaintiff; that the defendant dug and removed coal from under the premises of plaintiff in such manner as that sufficient support was not left to maintain the lands of plaintiff in their natural position; and that, by reason thereof, certain portions of the surface of said land subsided and the plaintiff was damaged.
A motion to dismiss the amended complaint, supported by affidavit, was filed by the defendant, to which plaintiff filed suggestions in opposition thereto and the court, upon a hearing, denied the motion to dismiss and ruled the defendant to answer. The answer of defendant admitted the ownership of the lands by plaintiff except the underlying coal, but denied it had been in possession of the mine since June 22, 1926; it admitted the operation of the mine and denied the material allegations of the amended complaint and that plaintiff was entitled to recover any damages, and prayed a judgment in bar.
The case was called for trial and a jury selected and sworn to try the same. During the course of the trial, leave was given plaintiff to file a second count to the amended complaint. In this second count plaintiff alleged that about May 1, 1928, six Illinois corporations, known as the Peabody Coal Company, the Industrial Coal Company, Midland Counties Coal Company, Southern Counties Coal Company, the Merchants Metropolitan Coal Company, and Big Muddy Coal Company, called the “constituent corporations,” merged or consolidated into a new corporation under the name of Peabody Coal Company, and that from June 22, 1926, until May 1, 1928, the original Peabody Coal Company was possessed of and using and operating a coal mine, known as Peabody Mine No. 57, and since May 1, 1928, defendant has operated the same. That the original Peabody Coal Company and the defendant (Peabody Coal Company) have mined and removed the coal from under the lands of plaintiff to such an extent and in such manner that sufficient support was not left under the land; but plaintiff is unable to state what part of the coal was mined and removed from under his land by the original Peabody Coal Company and what part by the defendant. That by reason thereof the surface of the lands was caused to subside and plaintiff was damaged. The answer of the defendant to the complaint as amended denied the allegations thereof and denied that plaintiff was entitled to any relief or recovery.
A motion by defendant for a directed verdict, made at the close of defendant's case, was denied by the court and a similar motion at the close of all of the evidence was denied. The jury returned a verdict in favor of plaintiff, assessing his damages at $18,227. Defendant filed a motion for a new trial and also moved the court for a judgment in its favor and in bar of plaintiff's action, notwithstanding the verdict of the jury, which motions were overruled by the court. The court thereupon rendered judgment upon the verdict of the jury and this appeal followed.
During the progress of the trial and after the second count was filed to the amended complaint, the circuit court granted plaintiff leave to amend his amended complaint by excluding by interlineation from the description of the lands therein described that part of the tract lying to the north and east of the Rochester Hard road, being State Bond Issue Route 24.
The case finally went to the jury on the amended complaint of plaintiff and second count thereof and the complaint as amended, alleging damages to approximately 110 acres of land, caused by the original Peabody Coal Company and the consolidated company, Peabody Coal Company, defendant, removing coal underlying the same in such manner as that sufficient support was not left to maintain the lands of plaintiff in their natural position and by reason thereof certain portions of the surface of said lands subsided and upon the answers of the defendant to said amended complaint and second count thereof as amended.
Appellant insists that the court erred in holding that the statute of limitations, Smith-Hurd Ill.Stats. c. 83, § 16, began to run from the time the subsidence occurred and not from the time of the removal of the coal. This question arose upon the motion of plaintiff to strike a part of the answer of defendant to the first count of the amended complaint, wherein it is alleged that no coal had been mined from under the lands of appellee during the five years preceding the filing of the suit, which motion was granted by the court. The court also instructed the jury that the statute began to run from the time of the occurrence of the subsidence and not, as contended by appellee, from the time of the removal of the coal.
Counsel for appellant states that, in discussing the issues of the case, they have assumed that the statute of limitations begins to run from the time there is a change in the condition of the surface, which is admitted by them to be in accordance with the rule announced in Morris v. Saline County Coal Co., 211 Ill.App. 178;Donk Bros. Coal & Coke Co. v. Slata, 133 Ill.App. 280;Treece v. Southern Gem Coal Corporation, 245 Ill.App. 113. And further say that the point involved does not appear to have been passed upon by the Supreme Court of this state, but that the better rule, on principle, would appear to be that the statute begins to run from the time of the removal of the coal. This question is settled by the cases cited by appellant, and the trial court did not err in holding that the statute of limitations began to run from the time a change in the condition of the surface of the land took place.
Appellant also insists that the second count of the amended complaint filed, by leave of court on June 3, 1936, states a new cause of action and that the statute of limitations should commence to run on June 3, 1931, instead of April 3, 1930. The second count of the amended complaint alleges the merger or consolidation of six corporations into a new corporation under the name of Peabody Coal Company, and that the coal had been removed by the original Peabody Coal Company and by the consolidated company, Peabody Coal Company, defendant. That, as a result of such removal, the subsidences had occurred within five years prior to the bringing of the suit. A motion was made to dismiss the second count of the complaint because the action sued on did not accrue within five years. The court overruled the motion.
A statute in force in this state at the time of the merger or consolidation of these corporations provided: That all rights of creditors shall be preserved unimpaired, and all liabilities and duties of the respective corporations shall attach to such single corporation and may be enforced against it to the same extent as if such liabilities and duties had been incurred and contracted by it, and that any action pending against one of the corporations, merged or consolidated, may be prosecuted to judgment as if consolidation had not taken place, or the merged or consolidated corporation may be substituted in its place. Smith-Hurd Ill.Stats. c. 32, § 157.69; Callaghan's Ill.St.Ann. chap. 32, par. 71. Under the provisions of this statute, plaintiff could recover against Peabody Coal Company any damages sustained by reason of the negligent act of either of the respective merging corporations within the five years previous thereto.
Section 46 of the Civil Practice Act, Smith-Hurd Ill.Stats. c. 110, § 170, provides that if the time prescribed or limited for the bringing of an action 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 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, when such condition precedent has in fact been performed, the cause of action shall not be barred by lapse of time, and for the purpose of preserving such cause of action any such amendment shall be held to relate back to the date of the filing of the original pleading so amended. A plaintiff is at liberty to state his cause of action in one or more counts and recovery may be had if he proves one or more of the counts.
The amended complaint alleges that defendant, Peabody Coal Company, negligently removed the coal from under the lands of plainti...
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