102 Ill. App. 318 | Ill. App. Ct. | 1902
delivered the opinion of the court.
It is insisted that the cause of action stated in the declaration first filed is not the same as that set forth in the amended narr.
The respective pleadings are variant as to the statement of the place of the accident (negligence), and therefrom, necessarily, as to the mismanagement of the particular object (train) by which the accident and injury were caused. The cause of action in each pleading is negligence on the part of the defendant and consequent injury to the plaintiff.
It is necessary that affirmative pleadings' should contain a venue (place) where each traversable fact is said to have occurred. Gould on Pleadings, Sec. 102.
This rule arose out of the desire for, as well as from the rule requiring, certainty in pleading. There was anciently, also, another reason for its existence. The litigation out of which the common law arose was largely as to matters concerning which the neighbors of the litigants had knowledge or acquaintance which made them better .judges than strangers, of the merits of the controversy. The maxim of the common law, “Maxima Vicini Vioinorum facta praesumuntur scire,” required that jurors should be selected from the neighborhood wherein the disputed facts were alleged to have happened.
There soon grew up a distinction between things local and things transitory; i. e., between local and transitory actions.
Mere debts, promises to pay money, were held to have no status; to be obligations existing in all places. “ Debitum et contractus sunt nullius loci.” As a rule, actions ex delicto, in which mere personalty is recoverable, are at common law transitory. This is because they are founded on violations of right, which, in contemplation of law, have no locality. Gould on Pleadings, Sec. 112.
In transitory actions the place at which the facts out of which the suit has arisen is immaterial and need not be proved as alleged; and a suit of this kind can not be abated or defeated on the ground that the venue is laid in the wrong county. Gould on Pleadings, Sec. 132; Owen v. McKean, 14 Ill. 459; Reed v. Walker, 52 Ill. 333-335; St. Louis, J. & Chicago Ry. Co. v. Thomas, 47 Ill. 116.
All that is set forth in the original declaration as to the accident having happened on State street, between Thirty-eighth and Thirty-ninth streets, might have been omitted therefrom without affecting the cause of action absque hoc therein stated, because the action is transitory and the place at which it arose immaterial. (Chicago West Division Ry. Co. v. Mills, 105 Ill. 63.) Did the plaintiff, by setting forth Avith unnecessary particularity the place where the negligence happened and he was injured, so make such statement a part of his cause of action that an amendment or a new count omitting this is a declaration upon another cause of action % Is the amended count, setting forth another place as that of the accident, a statement of a new cause of action and amenable to the statute of limitations %
Matter of inducement may sometimes be so pleaded as to require proof thereof on trial. Wabash Ry. Co. v. Friedman, 46 Ill. App. 270.
The question here presented is not whether the plaintiff would, upon trial, have been obliged to prove the matter of inducement unnecessarily alleged, but whether such inducement, by being alleged, became a part of the cause of action. Such was not the question before the court in Wabash Ry. Co. v. Friedman, 41 Ill. App. 270. Same v. same, 146 Ill. 583.
Upon the trial of that cause the defendant objected to the testimony offered upon the ground that there was a variance between it and the declaration. This objection was overruled and the testimony admitted. The court also refused to give an instruction asked by the defendant upon this subject.
The Supreme Court said that “ there was a variance between the proof and the declaration, and the court erred in the admission of the evidence and in the modification of defendant’s instruction.”
We are not now considering whether the plaintiff, under his original declaration, would not have been compelled to prove that the accident happened, as therein alleged, on State.street. The cause of action in this case is the negligence of appellant and the consequent injury to appellee; that was charged in the first declaration. A restatement or a new statement of the place at which the injury took place is not a statement of another cause of action. Stearns v. Reidy, 33 Ill. App. 246-249; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416-426; North Chicago Ry. Co. v. Monka, 107 Ill. 340; Mitchell v. Milholland, 106 Ill. 175; Dickson v. C., B. & Q. Ry. Co., 81 Ill. 215.
The place at which slanderous words are spoken need not be proven as alleged. (Owen v. McKean, 14 Ill. 458.) The place at which an assault and battery took place is not material and need not be proven as charged. Hurley v. Marsh, 1 Scam. 329.
The judgment of the Superior Court is affirmed.
