234 Ill. 101 | Ill. | 1908
delivered the opinion of the court:
The rule is established in this State that the Statute of Limitations expiring after the commencement of an action bars recovery upon an amended pleading afterwards put in, where the original pleading fails to state a cause of action; or, stated in other words, the rule is, that when a plaintiff, in his original declaration filed before the Statute of Limitations has run against his cause of action, fails to aver any cause of action whatever, and afterwards, when the statute has run, files an amended declaration with new and additional counts which do set up a cause of action, such new counts must be held to state a new cause of action,—one never before stated and one that is barred by the statute. (Eylenfeldt v. Illinois Steel Co. 165 Ill. 185; Illinois Central Railroad Co. v. Campbell, 170 id. 163; Klawiter v. Jones, 219 id. 626; Foster v. St. Luke’s Hospital, 191 id. 94; Mackey v. Northern Milling Co. 210 id. 115; McAndrews v. Chicago, Lake Shore and Eastern Railway Co. 222 id. 232.) In the case last above cited this court, on page 236, said: “In actions of the character of this it is necessary to aver and prove three elements to make out a cause of action: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence; (Schueler. v. Mueller, 193 Ill. 402; Mackey v. Northern Milling Co. 210 id. 115; Faris v. Hoberg, 134 Ind. 269; 33 N. E. Rep. 1028;) and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the declaration must state facts from which the law will raise the duty.—Ayers v. City of Chicago, 111 Ill. 406; Chicago and Alton Railroad Co. v. Clausen, 173 id. 100; Schueler v. Mueller, supra.”
By reference to the first count of appellant’s original declaration it will be seen that there is no averment of any duty owing to appellant’s intestate to protect him against injury from falling into the air-shaft. It is not stated why the deceased was upon the premises. For aught that appears he may have been a trespasser. The original declaration was therefore wholly insufficient to support a judgment because of the absence of an averment showing the existence of a duty on the part of appellee to protect appellant’s intestate from the injury complained of. The second and third counts of the original declaration were defective in the same respect as the first. There being no cause of action stated in the original declaration, it did not arrest the running of the Statute of Limitations against the cause of action stated in the amended declaration.
Finding no error in the record the judgment is affirmed.
Judgment affirmed.