Northern Milling Co. v. Mackey , 1901 Ill. App. LEXIS 328 ( 1901 )

Mr. Presiding Justice Windes

delivered the opinion of the court.

The first claim of appellant’s counsel is that the declaration states no cause of action. We will only consider the second count of the amended declaration, since the two counts of that declaration on which the case was tried are quite similar, and if the second count is insufficient, the first is also.

It has been repeatedly held that a declaration in a case of this kind should state facts from which the law will raise a duty from the master to the servant — must state facts from which negligence will be presumed. If it fails so to do then it is insufficient to support a judgment. Ayres v. City of Chicago, 111 Ill. 406; Joliet Steel Co. v. Shields, 134 Ill. 209; C. & A. R. R. Co. v. Clausen, 173 Ill. 100-5, and eases cited; Angus v. Lee, 40 Ill. App. 304; R. R. Co. v. Coit, 50 Ill. App. 640; 1st Chitty’s Pldgs. 681 (9th Am. Ed.); Gould’s Pldgs., Ch. 10, Secs. 13 and 22.

In the Ayres case, supra, which was an action on the case to recover for personal injuries for alleged negligence, the court- say:

“ The pleader must state facts from which the law will raise the duty.” -

In the Clausen case, supra, the court say:

“ It is not sufficient in a declaration to allege that it is the duty of the defendant to do certain things, but the declaration, must state facts from which the law will raise the duty.”

In the Ooit case, supra, this court held that if, from the facts stated, the law would imply the duty, the allegation of duty was unnecessary. It is elementary that there is no .negligence without a duty.

But it is claimed for appellee, in substance, that the facts here alleged show a duty, and consequently that appellant was negligent; also that at most the declaration is a defective_statement of a cause of action, and not a_.stat.ement of a defective cause of action, and is sufficient alter verdict to sustain the judgment. We think the contentions of appellee’s counsel are not tenable.

The second count in substance alleges that the appellant was the owner of, or operating a mill, and in connection therewith used a side-track for loading and unloading material; that Thomas Mackey was its employe and was lawfully on said side-track adjoining appellant’s mill, and while so there and in the exercise of reasonable and proper care, appellant’s servant, not Mackey’s fellow-servant, pushed an unloaded car along the side-track and upon him without giving him any notice or warning whatever of any impending danger, and by reason thereof caused his death. All these things might be strictly and accurately true as stated, and still appellant would not be guilty of negligence. • It does not appear from any statement of the declaration that Thomas Mackey was ordered by appellant to work or be where he was, nor that appellant’s servants or any of them knew or ought to have known that he was where he was alleged to have been, or that he was exposed to any danger, whatever from the act that it.is alleged they did, nor is there any fact or circumstance alleged from which it could be reasonably inferred that they had such knowledge. In the absence of such allegations, or sufficient allegations to charge appellant with a duty to decedent, it seems to us clear that the declaration fails to state a cause of action, and that it can not be cured by verdict.

In the Shields case, supra, the court say, “ Nothing will be presumed after verdict but what must have been necessarily proved under the averments of the declaration,” and held that an omission in the declaration (which was for personal injury to the plaintiff by the defendant’s servants) to allege that they were not the fellow-servants of the plaintiff,, was not cured by verdict, and that the court erred in overruling a motion in arrest.

In the Clausen case, supra, the Shields case is re-affirmed and the court say (citing numerous cases):

“ Where the declaration and the issue joined upon it do not fairly impose a duty upon the plaintiff to prove the omitted fact, the omission will not be cured.) * * * The intendment in such cases arises from the joint effect of the verdict and the issue upon which it was given, and if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the .want of an express statement of it in the declaration is cured by the verdict. Under this rule a verdict will aid a defective statement of a cause of action, but will never assist a statement of a defective cause of action. 1 Chitty’s PI. 681.”

In Gould on Pleading (Hamilton’s Ed.), chapter 10, page 477, the author says:

“ Where no cause of action is stated, the omission is not cured by verdict. For as no right of recovery was necessary to be proved, or could have likely been proved under such a declaration, there can be no ground for presuming that it was proved at the trial.”

The issue here was not guilty, and the declaration not only fails to allege specifically such facts as would show negligence on the part of appellant, but is not sufficiently general to comprehend, by fair and reasonable intendment, the facts necessary to be proven as hereinabove set forth, which were requisite in order to establish appellant’s negligence.

It is further contended that no negligence was proved; that the deceased assumed the risk and that a recoven’- is barred because of deceased’s contributory negligence, and that the negligence of appellant, if any, was that of a fellow-servant of Thomas Mackey.

Inasmuch as the cause must be reversed because of the insufficiency of the declaration, we deem it unnecessary to refer in detail to the evidence. It is sufficient to say that we have carefully and diligently read and considered it in the light of the arguments, and are of opinion that as to all the matters above claimed, it presents questions peculiarly for the jury, and that under a proper declaration we are not prepared to hold that a recovery is barred under the evidence in this record.

We think that the first instruction for appellee, quoted in the statement, is erroneous in that it fails to limit the right of recovery to the negligence charged in the declarar tion, even if it could be said that there is any negligence there charged; also because it assumes that Martin Ahrens, whom the instruction designates as appellant’s agent, was a vice-principal, whereas it was a contested question in the case as to whether Ahrens was a vice-principal or a fellow-servant of decedent.

We see no objection to the second instruction for appellee, quoted in the statement, for the reasons claimed in appellant’s argument.

On the cross-examination of George Ahrens, one of appellant’s witnesses, he was asked, fixing a time and place, if he did not say that his brother ordered Mackey to sweep off the track the morning of the accident, and that his brother was to blame for the accident. The question was, after objection by defendant’s counsel, answered in the negative, and on rebuttal the court permitted the appellee to call witnesses who in effect testified that George Ahrens had said that it was his brother’s fault that Mackey was killed. We are of opinion that this was error. Whether it was the fault of George Ahrens’ brother that Mackey was killed, was one of the questions to be determined by the jury, and whether or not he gave such an opinion, should not have gone to the jury, as it was calculated seriously to prejudice appellant. Horner v. Koch, 84 Ill. 408; Ry. Co. v. Smith, 69 Ill. App. 69; Nat., etc., Co. v. Miethke, 35 Ill. App. 629; 2 Jones on Evid., Sec. 361.

For the errors indicated the judgment is reversed and the cause remanded.