231 Ill. 622 | Ill. | 1907
delivered the opinion of the court:
The first declaration as amended January 21, 1904, sought a recovery upon the breach of a common law liability. The declaration as changed April 4, 1904, substitutethe parents, as next of kin, as plaintiffs in place of the administrator, and set up an action for recovery of a statutory penalty, only, under the Mines and Miners act. Afterwards, on January 18, 1905, the declaration was again amended so as to ask for recovery on the common law liability alone, the administrator being substituted as plaintiff in place of the next of kin. The Appellate Court held that this last amendment substituted a new and different cause of action from that relied upon in the declaration as it existed previous to this last amendment, and that therefore the Statute of Limitations had run and the plea of this statute was good and should have been sustained.
This court held in United States Ins. Co. v. Ludwig, 108 Ill. 514, that where an action at law is brought in the name of the beneficial plaintiff an amendment substituting the proper person as plaintiff is allowable, and that such substitution is in no sense the commencing of a new suit. In discussing the question whether the amendment of the declaration amounted to the substitution of a new cause of action this court has frequently laid down the rule that if the original declaration states a wholly defective cause of action it cannot be made a basis for amending so as to state a good cause of action, but if the declaration which is to be amended is the statement of a cause of action in a defective manner, it can be amended so as to avoid the effect of the defective pleading; that limitations do not apply to mere matters of pleading, and should not be given that effect indirectly, by holding that an imperfect statement of a cause of action is no statement of it. (Eylenfeldt v. Illinois Steel Co. 165 Ill. 185; North Chicago Street Railroad Co. v. Aufmann, 221 id. 614; Me Andrews v. Chicago, Lake Shore and Eastern Railway Co. 222 id. 232; Deering v. Barzak, 227 id. 71.) But where an amendment or additional count brings forth a new or different cause of action it is regarded as a new suit, begun when such amendment or additional count is filed, and such amendment or count introducing a cause barred by limitation cannot avoid the statutory bar. Fish v. Farwell, 160 Ill. 236; Swift & Co. v. Madden, 165 id. 41; Heffron v. Rochester German Ins. Co. 220 id. 514.
This court held in Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 Ill.361, that where an original declaration declared specially on a statute for recovery, an amended count based on a common law liability introduced a new cause of action, which was barred by limitation. That case is the most nearly like the case at bar of any decided by this court that has been called to our attention. The reasoning in that case would seem to control here: The declaration previous to the amendment of January 18, 1905, was based on the Mines and Miners act, especially section 33 thereof. (Hurd’s Stat. 1905, p. 1393.) Under this declaration it was necessary to prove that the causé of the accident was willful on the part of appellee, but it was not necessary to allege or prove that the deceased had exercised due care or was not guilty of contributory negligence. (Litchfield Coal Co. v. Taylor, 81 Ill. 590; Kellyville Coal Co. v. Strine, 217 id. 516; Chicago-Coulterville Coal Co. v. Fidelity and Casualty Co. 130 Bed. Rep. 957; Springñeld Coal Mining Co. v. Gordon, 147 id. 690.) Under the amended declaration filed January 18, 1905, upon which verdict and judgment were based, common law liability was charged, and in order to recover it was necessary to allege and prove that the deceased was in the exercise of due care and had not assumed the risk or been guilty of contributory negligence. (Carterville Coal Co. v. Abbott, 181 Ill. 495; Consolidated Coal Co. v. Bokamp, 181 id. 9.) Manifestly, the cause of action necessary to be alleged and proved under the Mines and Miners act was a different cause of action from that which must be alleged and proved by the administrator to recover on the common law liability. Not only are the parties plaintiff different, but the proof necessary to make out a case may be very different in one case from that required in the other.
When, on April 4, 1904, the declaration was amended by striking out the common law counts and substituting a declaration based solely on the Mines and Miners act the action commenced by appellant as administrator terminated, and the case then stood as if no legal proceedings had been commenced by him, so far as the running of the Statute of Limitations was concerned. If the administrator had, therefore, gone into another court and started an action relying on the common law liability, all admit that the Statute of Limitations would run, the same as if no action had been started by him previously. In order to prevent the bar of the Statute of Limitations, an amendment declaring again on the common law liability must be filed before the Statute of Limitations has run. In the case at bar the deceased was fatally injured July 16, 1902. The last amendment, upon , which the verdict was recovered, and which substituted in place of the statutory liability under the Mines and Miners act an entire new cause of action based on.the common law liability, was filed January 18, 1905, more than two years after the cause of action accrued, and hence, whether the one or two-year Statute of Limitations applies, the action must be held to be barred.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.