{ "id": 2592931, "name": "Ernest J. Mott v. Chicago and M. El. Ry. Co.", "name_abbreviation": "Mott v. Chicago & M. El. Ry. Co.", "decision_date": "1902-06-23", "docket_number": "", "first_page": "412", "last_page": "416", "citations": [ { "type": "official", "cite": "102 Ill. App. 412" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "165 Ill. 41", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3104883 ], "weight": 2, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill/165/0041-01" ] }, { "cite": "182 Ill. 359", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3213040 ], "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill/182/0359-01" ] }, { "cite": "146 Ill. 540", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3067671 ], "opinion_index": 0, "case_paths": [ "/ill/146/0540-01" ] }, { "cite": "134 Ill. 209", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5438949 ], "opinion_index": 0, "case_paths": [ "/ill/134/0209-01" ] } ], "analysis": { "cardinality": 391, "char_count": 9758, "ocr_confidence": 0.578, "pagerank": { "raw": 9.984513963083102e-08, "percentile": 0.5381945047761472 }, "sha256": "3bc10792d4f64757656316a0074dd9ccd16a1cc14973ca11f0d60be25f1d82c1", "simhash": "1:225bdec0b92a020d", "word_count": 1642 }, "last_updated": "2023-07-14T14:51:35.524386+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ernest J. Mott v. Chicago and M. El. Ry. Co." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nAppellant was plaintiff and appellee defendant in the trial court. The suit was commenced October 26, 1899. At the same date a declaration was filed, averring as follows:\n\u201c That on, etc., in, etc., the plaintiff was employed as a lineman, performing his duty as such on the Waukegan Road, Lake county, Illinois; that the defendant then and there owned an electric motor and passenger car known as a street car, used by the defendant to carry passengers on said road, and which was then and there under the care and management of drivers, then servants of the defendant, who then and there drove said car along said road in said county; and while the plaintiff with all due diligence was performing his duties as lineman for defendant on said road, the defendant, then and there, by its servants so carelessly and improperly drove and managed said car, that by and through the negligent management and unskillfulness of the defendant by its said servants in that behalf, said car then and there ran into and struck plaintiff with great force and violence, thereby throwing the plaintiff with great force and violence upon the ground, thereby then and there greatly bruising, hurting and wounding him,\u201d etc.\nMarch, 1901, the plaintiff, by leave of the court, filed an amended declaration, in which it is averred as follows:\n\u201c That, on January 24, 1899, in Lake county, Illinois, plaintiff was employed by defendant as a lineman, performing his duty as such on the Waukegan road in said county; that defendant then and there owned an electric motor and passenger car, known as a street car, used by defendant to carry passengers on said road, and which was then and there under the care and management of a certain motorman, a servant of defendant, and who was not a fellow-servant of the plaintiff, and who was then and there driving said car along said road, in said county; and while plaintiff, with all due diligence, was then and there performing his duties as lineman for said defendant on said road, the defendant then and there, by its said servant, the said motor,man acting as such, and not as a fellow-servant of plaintiff, so carelessly and improperly drove.and managed said car, that by and through the negligent management and unskillfulness of said defendant, by its said servant in that behalf, the said car then and there ran into and struck the plaintiff with great force and violence, throwing the plaintiff thereby upon the ground with great force and violence,\u201d etc.\nThe defendant pleaded the statute of limitations to the amended declaration; the plaintiff demurred to the plea; the court overruled the demurrer and sustained the plea; and plaintiff electing to stand by his demurrer, judgment was rendered against the plaintiff for costs.\nThe injury being, by the amended declaration, alleged to have occurred January 24, 1899, more than two years prior to the Sling of that declaration, the cause of action stated in the amended count is barred, if it is a different cause of action from that stated in the original declaration, and appellee\u2019s counsel contends that it is. The main difference between the original and amended declaration is, that in the former it is not, in terms, alleged that the servants referred to were not fellow-servants of the plaintiff, while in the latter it is, in terms, averred that the servant therein referred to was not a fellow-servant of the plaintiff. The vital question is, whether the statement in the original declaration is a statement of a defective cause of action or a defective statement of a cause of action. If the former, the statute of limitations was well pleaded; but if the latter, not. Appellee\u2019s counsel relies on Joliet Steel Co. v. Shields, 134 Ill. 209, in support of the plea. In that case the judgment of the court does not indicate that the opinion of the court was that the averments in the declaration were of a defective cause of action; but rather that they constituted a defective statement of a cause of action, because the court remanded the cause to the Circuit Court, with leave to the plaintiff to amend his declaration. In Libby, McNeill & Libby v. Scherman, 146 Ill. 540, the declaration averred that the acts of omission and commission alleged as negligence, were the acts of the defendant, the defendant\u2019s servant not being mentioned. It seems from the opinion that counsel for the appellant contended that the declaration should have contained the negative averment that the negligence charged was not the negligence of a fellow-servant or fellow-servants of the plaintiff, but the \u00f3ourt held the contrary, saying:\nThe contention is, that the defendant, being a corporation, could act only by its agents and servants, and that as the maxim respondeat superior has no application to injuries resulting from the negligent acts of the fellow-servants of the plaintiff, the declaration must show affirmatively, by-express averments, that the injury complained of was caused by the negligent acts of agents or servants of the defendant, who were not fellow-servants of the plaintiff. This, in our opinion, was not necessary. The allegations of the declaration, so far as this point is concerned, are in the form which has been universally recognized by the rules of common law pleading as sufficient to charge a corporation with negligence. They are that the defendant, that is, the corporation itself, negligently did the acts complained of, allegations which exclude, ex vi termini, the theory that they were performed by parties for whose conduct the defendant was not responsible.\u201d\nWe must confess that we are unable to perceive any sound legal distinction between an averment that a defendant corporation did or omitted to do a thing, and an averment that it did or omitted to do the thing by its servants. A corporation, in a case like the present, can act only by its servants, and therefore an averment that the corporation performed an act is, as it seems to us, necessarily equivalent to saying that it performed the act by its servants.\nIn such a case as the present, where improper, unskillful and negligent management is charged, an averment that such improper, unskillful and negligent management was by the defendant corporation, can only be sustained by proof that it was by the servants of the corporation. Therefore, an averment that the defendant corporation, \u201c by its servants so carelessly and improperly drove and managed said car. that,\u201d etc., is more expressive of the actual fact, which must be proved, than is .the averment that the defendant \u201c so carelessly drove,\u201d etc.\nIn Chicago City Ry. Co. v. Leach, 182 Ill. 359, 364, the court say:\n\u201cIn 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\u2014in other words, the act or wrong of the defendant toward 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.\u201d See also, Swift v. Madden, 165 Ill. 41, 45.\nThe cause of action set out in both the original and amended declarations, in the present case, is the same, namely:\n\u201c The careless and improper driving and management of the car, so that, by and through such negligent management and unskillfulness, the car ran into and struck the plaintiff,\u201d etc.\nOn the hypothesis that the original declaration is defective in not averring that the servants therein mentioned were not fellow-servants of the plaintiff, we are of opinion that the original declaration is a defective statement of a cause of action, which is remedied by the amended declaration, and that the cause of action stated in the amended declaration is not different from that stated in the original declaration.\nThe judgment will be reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "Charles A. Butler, attorney for appellant; Otho D. Swearingen, of counsel.", "Alexander Clark, attorney for appellee." ], "corrections": "", "head_matter": "Ernest J. Mott v. Chicago and M. El. Ry. Co.\n1. Statute oe Limitations\u2014Amended Counts, When Amenable to. \u2014When the plaintiff in an action for personal injuries files an amended count to his declaration in which a different cause of action is, in reality, declared upon, if not filed within the time limited, such count is amenable to a plea of the statute of limitations.\n2. Pleading\u2014 What is Not a Different Cause of Action in an Amended Count.\u2014In an action for negligence, when the statement of the cause of action is defective, an amended count, in which the defect in the original declaration is corrected, does not state a different cause of action and is not amenable to a plea of the statute of limitations.\n3. Same\u2014Unnecessary to State that Co-employes Were Not Fellow-Servants.\u2014In an action for personal injuries it is not necessary for the plaintiff, in his declaration, to show affirmatively, by averments, that the injury complained of was caused by the negligent acts of agents or servants of the defendant, who were not his fellow-servants.\n4. Respondeat Supeeioe\u2014Does Not Apply to Injuries Resulting from the Negligent Acts of Fellow-Servants.\u2014The maxim respondeat superior has no application to injuries resulting from the negligent acts of the fellow-servants of the plaintiff.\nTrespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding.\nHeard in this court at the October term, 1901.\nReversed and remanded.\nOpinion filed June 23, 1902.\nCharles A. Butler, attorney for appellant; Otho D. Swearingen, of counsel.\nAlexander Clark, attorney for appellee." }, "file_name": "0412-01", "first_page_order": 428, "last_page_order": 432 }