Chicago City Railway Co. v. Leach

Mr. Justice Craig

delivered the opinion of the court:

The first and second additional counts were filed after the Statute of Limitations had run, and unless those counts may be regarded as a re-statement of the cause of action set out in the first count of the original declaration, the plea of the Statute of Limitations was a bar and the ruling of the court on the demurrer to the pleas was erroneous.

In the first count of the original declaration the relationship of the parties is fully stated, and under the rule laid down in Chicago and Alton Railroad Co. v. Swan, 176 Ill. 424, and Louisville, Evansville and St. Louis Railroad Co. v. Hawthorn, 147 id. 233, it was not necessary to aver specifically that appellee and Golden were not fellow-servants. It was sufficient that the facts set up established that relation. The first additional count was therefore a mere re-statement, in somewhat different form, of the cause of action set up in the. first count of the original declaration, and the demurrer to the plea of the Statute of Limitations to that count was properly sustained.

The ruling of the court, however, on the demurrer to the plea of the Statute of Limitations to the second additional count presents a more serious question. A new or different cause of action introduced by an additional count is treated as a new suit begun at the time of filing such count, and if ,the Statute of Limitations has run before the new count is filed, the cause of action therein set up will be barred. (Fish v. Farwell, 160 Ill. 236.) In Swift & Co. v. Madden, 165 Ill. 41, we held that the cause of action may be regarded as the act or thing done or omitted to be done by one which confers the right upon another to sue,—in other words, the act or wrong of the defendant towards the plaintiff which causes a grievance for which the law gives a remedy. The question here presented, therefore, is whether the act or thing done by the defendant which caused the injury to the plaintiff set out in the second additional count of the declaration is the same as that set out in the first count of the original declaration.

Upon an examination of the first count of the declaration it will be seen that the ground of recovery relied upon was the negligence of appellant’s servants in driving and operating a train of cars at such, a high and dangerous rate of speed that the train could not be stopped in time to avoid the injury,—in the language of the declaration, that defendant, by its servants, negligently, carelessly and recklessly drove and operated a" train of cars operated by defendant at so high and dangerous a rate of speed that it could not be stopped, and it with g'reat force and violence ran into and against the train of which plaintiff had charge. But upon an examination of the second additional count it will be seen that plaintiff does not rely upon the negligence of appellant in operating the train at a high and reckless rate of speed for a recovery, but he proceeds entirely upon a different ground: that it was the duty of appellant to use reasonable care in furnishing and retaining competent servants to run and operate its trains; that appellant did not regard this duty, but wrongfully, negligently and improperly provided and retained in its service a certain servant to run one of its trains who was incompetent and unfit for that purpose; that said servant was reckless and careless; that appellant knew, or by the exercise of proper care could have known, of such incompetency. The act or wrong relied upon in this count is entirely different from the act or wrong relied upon in the first cqunt of the declaration.

The evidence to sustain one count would not sustain the other, and the evidence in defense, as against one count, could not be relied upon as a defense under the other. Indeed, the issue presented under one count is not presented under the other. The ground of recovery relied on in one count is different from that set up in the other, and we perceive no ground upon which it can be held that the cause of action involved in the two counts is the same. We regard the question here involved is controlled by Phelps v. Illinois Central Railroad Co. 94 Ill. 548, Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 id. 361, Fish v. Farwell, 160 id. 236, and Illinois Central Railroad Co. v. Campbell, 170 id. 163.

It is, however, claimed in the argument that if the court did err in sustaining the demurrer to the plea of the Statute of Limitations, such error should not reverse the judgment if appellee has made a case under the count alleging that he and Golden were not fellow-servants. We do not concur in that view. In addition to the plea of the Statute of Limitations to the second additional count appellant filed a plea of the general issue, whereby an issue of fact was made to be tried by the jury, and the cause proceeded to trial not only on the count which alleged that ax^pellee and Golden were not fellow-servants, but also on the issue of fact raised in the second additional count, which was predicated on appellant’s duty to furnish competent fellow-servants. Much evidence was introduced by the respective parties on this question. Indeed, it was one of the main controverted questions submitted to the jury. For aught that appears the jury may have based their verdict entirely on the issue found in the second additional count of the declaration. Under such circumstances it cannot properly be said that appellant was not prejudiced by the ruling of the court on the plea of the Statute of Limitations interposed to the second additional count of the declaration.

Questions have been raised in the argument in regard to the ruling of the court on the admission of evidence and the ruling on instruction's in reference to appellant’s furnishing competent servants, but if we are correct in holding that the Statute of Limitations was a bar to that issue it will not be necessary to allude to the ruling of the court on the questions which were raised under it, either as to the admission of evidence or the instructions, as these questions will not arise on another trial.-

For the error of the trial court in sustaining a demur-^rer to the plea of the Statute of Limitations interposed to the second additional count, the judgments of the Ap- * pellate and superior courts will be reversed and the cause '■ will be remanded for another trial.

Reversed and remanded.