{ "id": 2847079, "name": "William Gilman, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error", "name_abbreviation": "Gilman v. Chicago Railways Co.", "decision_date": "1914-03-10", "docket_number": "Gen. No. 19,144", "first_page": "396", "last_page": "400", "citations": [ { "type": "official", "cite": "185 Ill. App. 396" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "250 Ill. 416", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3430664 ], "opinion_index": 0, "case_paths": [ "/ill/250/0416-01" ] }, { "cite": "42 Ill. 370", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5293707 ], "weight": 3, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill/42/0370-01" ] }, { "cite": "240 Ill. 311", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3423845 ], "opinion_index": 0, "case_paths": [ "/ill/240/0311-01" ] }, { "cite": "217 Ill. 164", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3356744 ], "opinion_index": 0, "case_paths": [ "/ill/217/0164-01" ] }, { "cite": "193 Ill. 402", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578098 ], "opinion_index": 0, "case_paths": [ "/ill/193/0402-01" ] }, { "cite": "173 Ill. 100", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5537720 ], "opinion_index": 0, "case_paths": [ "/ill/173/0100-01" ] }, { "cite": "95 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2721809 ], "opinion_index": 0, "case_paths": [ "/ill/95/0328-01" ] }, { "cite": "19 Ill. 207", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441728 ], "opinion_index": 0, "case_paths": [ "/ill/19/0207-01" ] }, { "cite": "240 Ill. 259", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3423184 ], "opinion_index": 0, "case_paths": [ "/ill/240/0259-01" ] }, { "cite": "219 Ill. 626", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5620959 ], "opinion_index": 0, "case_paths": [ "/ill/219/0626-01" ] } ], "analysis": { "cardinality": 435, "char_count": 7788, "ocr_confidence": 0.518, "pagerank": { "raw": 8.724443257361318e-08, "percentile": 0.49401953550187677 }, "sha256": "3d9341da80e4d2b113a530624c72f599c2b8691551a795117b7b7e6ff12b492a", "simhash": "1:b17b06e4c09eb8de", "word_count": 1382 }, "last_updated": "2023-07-14T19:43:38.716309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William Gilman, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Justice Clark\ndelivered the opinion of the court.\nBy the writ of error in this case a judgment in favor of the defendant in error for five hundred dollars is sought to be reversed. Only the common-law record is before us, and the assignments of error are all based on the one proposition that the plaintiff\u2019s statement of claim does not set forth a cause of action, and that, therefore, the judgment predicated upon it should not be allowed to stand. The plaintiff\u2019s statement is as follows;\n\u201cPlaintiff\u2019s claim is for damages caused by a door in one of defendant\u2019s street cars violently striking against the car dumper (bumper) and breaking the glass in the door and showering broken glass on plaintiff cutting the blood vessel and nerve in the back of plaintiff\u2019s right hand causing pain and suffering and loss of two weeks\u2019 time and permanently injuring plaintiff\u2019s hand to plaintiff\u2019s damage of one thousand dollars.\u201d\nAn affidavit of merits was filed by the Railways Company, defendant, setting forth the nature of its defense to be as follows: \u201cThat the injuries complained of in plaintiff\u2019s statement of claim occurred through no fault of the defendant.\u201d The affidavit of defense also contains this language: \u201cReserving the right to object to any insufficiency of plaintiff\u2019s statement of claim and any insufficiency of plaintiff\u2019s evidence to establish defendant\u2019s liability.\u201d -\nWe agree with counsel for defendant that the statement of claim does not set up a cause of action, as required by the rules of common-law pleading; it does not charge negligence on the part of the defendant, nor does it allege that the plaintiff was in the exercise of ordinary care. Klawiter v. Jones, 219 Ill. 626; Walters v. City of Ottawa, 240 Ill. 259. The authorities also fully sustain the proposition of the defendant, to the effect that at common law the question that a cause of action is not stated in the declaration is not waived by the filing of the plea of the general issue, and the point may be raised for the first time in a court of review. Smalley v. Edey, 19 Ill. 207; Board Sup\u2019rs Madison County v. Smith, 95 Ill. 328; Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Schueler v. Mueller, 193 Ill. 402; Chicago R. I. & P. Ry. Co. v. People, 217 Ill. 164.\nIn the case of Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311, it is said in respect to cases like the one now under consideration (being cases of the fourth class):\n\u201cAs to this class of cases under the Municipal Court act, where no written pleadings are required, the same rule will govern as controls the form of actions before justices of the peace. We have held that \u2018it is the well settled practice that in such courts [i e., where written pleadings are not required,]\" the party suing need not even name his action, or if misnamed, that will not affect his rights, if upon hearing the evidence he appears to he entitled to recover and the court has jurisdiction of the defendant and of the subject matter of the litigation.\u2019 (Pollock v. McClurken, 42 Ill. 370; Rehm v. Halverson, 197 id. 378; Swingley v. Haynes, 22 id. 214; Ballard v. McCarty, 11 id. 501.) \u201d\nIt is argued by-the plaintiff in error that this announcement of the law is incorrect and that the decision is practically overruled by the case of Walter Cabinet Co. v. Russell, 250 Ill. 416, wherein the following language is used:\n\u201cThe object of the rules requiring statements of claim and of set-off is to inform the parties of the nature of the respective claims, and while the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement. The issue cannot be enlarged by oral claims or affidavits filed in the case.\u201d\nThe Edgerton case, supra, is not referred to in the case cited, and we should not assume that in the language used it was intended, expressly or by indirection, to reverse the holding in the former case. Until otherwise advised, we must assume that the practice in the Municipal Court in fourth class cases is the same as that in eases before justices of the peace. \u201cIn such a case the question is whether the justice of the peace has jurisdiction of the parties and the subject matter of the suit, and a right of recovery is shown,\u2014if so, then he must have judgment.\u201d Pollock v. McClurken, 42 Ill. 370.\nThe court clearly had jurisdiction, and we must assume that the evidence, if it had been preserved in the record, would have shown a right of recovery in the plaintiff.\nThe judgment is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Clark" }, { "text": "Mr. Justice Barnes\nconcurring specially:\nI agree that the judgment should be affirmed, but not upon the ground stated. The Russell case, supra, recognizes that, unlike the justice court practice, section 40 of the Municipal Court Act (J. & A. 3352) requires a pleading, called a statement of claim, to be filed when the suit is commenced, and that, like any other pleading, its purpose is to present an issue for trial, but not \u201cwith the particularity required in a declaration at common law.\u201d The manner of forming an issue thereon is left to the rules of said court. This appears to be done by filing an affidavit of defense, which defendant did in this case, taking issue and thus showing that it understood \u201cthe nature of the case,\u201d which is all said section requires the pleading to set forth. It was manifestly too late after thus taking issue to raise any question as to its sufficiency in that respect, and that is the only question before this court.\nBut I cannot, in the face of the statute, assent to the view that a suit upon a contract or for tort in the Municipal Court can he tried without pleadings as in courts of justices of the peace, or that the Supreme Court intends to be understood as so holding. Whatever it may be called, the statement of claim required by said section performs the office of a pleading, but one to which the technicalities of common-law pleadings and practice are not applicable.", "type": "concurrence", "author": "Mr. Justice Barnes" } ], "attorneys": [ "John W. Walsh and Frank L. Kriete, for plaintiff in error; John R. Guilliams, of counsel.", "E. W. Adkinson, for defendant in error." ], "corrections": "", "head_matter": "William Gilman, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.\nGen. No. 19,144.\n1. Municipal Court oe Chicago, \u00a7 13 \u2014when statement of claim does not state a cause of action. In an action for personal injuries in the Municipal Court a statement of claim which did not allege negligence on the part of defendant or due care on plaintiff\u2019s part does not state a cause of action under the rules of common-law pleading.\n2. Appeal and error, \u00a7 445 \u2014when Insufficiency of declaration to state a cause of action may be raised. At common law the fact that a declaration does not state a cause of action is not waived by filing a plea of the general issue, and the point may be raised for the first time on review.\n3. Municipal Court of Chicago, \u00a7 13*\u2014when fact that statement of claim does not state a cause of action immaterial. In fourth class cases in the Municipal Court the practice is the same as in justice courts, and the fact that the statement of claim would be insufficient to set up a cause of action at common law does not render it insufficient.\nBarnes, J., concurring specially.\nError to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.\nHeard in the Branch Appellate Court at the March term, 1913.\nAffirmed.\nOpinion filed March 10, 1914.\nJohn W. Walsh and Frank L. Kriete, for plaintiff in error; John R. Guilliams, of counsel.\nE. W. Adkinson, for defendant in error.\nSee Illinois Notes Digest, Vols. XI to XV, same topic and section number.\nSco Illinois Notes Digest, Vols. XI to XV, same topic and section number." }, "file_name": "0396-01", "first_page_order": 422, "last_page_order": 426 }