Gillman v. Chicago Railways Co.

Mr. Justice Dunn delivered the opinion of the court: The Appellate Court affirmed a judgment for $500 recovered by William Gillman against the Chicago Railways Company in the municipal court of Chicago and granted an appeal to this court, having certified that the cause involves questions of law of such importance that it should be passed upon by the Supreme Court. The case was one of the fourth class, being a civil action for the recovery of money, only, in which the amount claimed by the plaintiff did not exceed $1000. The record consists of a prmcipe, summons and return thereof, statement of the plaintiff’s claim, affidavit of a meritorious defense, and an order showing a trial by .the court without a jury, a finding of guilty, assessment of damages and judgment. The question argued is the sufficiency of the statement of claim to sustain the judgment. The statement is as follows: “Plaintiff’s claim is for damages caused by a door in one of defendant’s street cars violently striking the car 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’s right hand, causing pain and suffering and loss of two weeks’ time and permanently injuring plaintiff’s hand, to plaintiff’s damage of $1000.” The affidavit of merits states that the nature of the defense is as follows: “That the injuries complained of in plaintiff’s statement of claim occurred through no fault of defendant, reserving the right to object to any insufficiency in plaintiff’s statement of claim and any insufficiency of plaintiff’s evidence to establish defendant’s liability.” Section 3 of the Municipal Court act provides in regard to cases of the fourth class, that “the issues shall be Meter-mined without other forms of written pleadings than those hereinafter expressly prescribed or provided for.” Section 40 thereinafter expressly prescribes and provides for the form of written pleadings in fourth-class cases, except certain cases not material in this instance, by requiring every such case to be commenced by the filing of a praecipe and “a statement of the plaintiff’s claim, which statement, if the suit be upon a contract, express or implied, shall consist of a statement of the account or of the nature of the demand, or, if the suit be for a tort, it shall consist of a brief statement of the nature of the tort and such further information as will reasonably inform the defendant of the nature of the case he is called upon to defend, but nothing herein contained shall be construed to require the statement of claim in any action for a tort to set forth the cause of action with the particularity required in a declaration at common law.” The appellee concedes,—as, indeed, he must under section 40 of the statute,—that the filing of a statement of claim was necessary to the commencement of the suit. If the' record showed no statement of claim filed but only ,a praecipe, with a summons and a return of service, and a default had been taken and judgment rendered against the defendant, probably no one would insist that such a judgment should not be reversed. The • defendant would not be bound to answer in such case where no claim had been made against him and could not be in default. He is no more bound to answer a claim which does not show any liability against him. In this case the plaintiff’s statement makes no pretense of being based on a contract, and in the argument his counsel states that this is a case of tort. In such case the statute requires a statement of the nature of the tort and such information as will reasonably inform the defendant of the nature of the case he is called upon to defend. If such a statement has not been filed, clearly the plaintiff is not entitled to have the court render a judgment in his favor. The municipal court is expressly declared to be a court of record, and its judgments must be sustained by its record according to the ordinary practice of common law courts, except where such practice has been changed by law. The practice has been changed so that in the class of cases now under consideration no declaration is required but only a statement of claim. It is argued for the appellee that nothing is required of the plaintiff but a brief statement of the nature of the tort, and that there is no requirement to state facts showing a cause of action. It is difficult to conceive how it is possible to show a tort done to the plaintiff without disclosing a cause of action. Section 40 requires a brief statement of the nature of the tort, etc., and continues, “but nothing herein contained shall be construed to require the statement of claim in any action for a tort to set forth the cause of action with the particularity required in a declaration at common law.” This proviso proceeds on the theory that the statement of claim must show a cause of • action. If not, it is useless. If by the preceding part of the section it was not required to state a cause of action it was unnecessary to say that the cause of action need not be stated with the particularity required at common law. If it was intended that' the statement of claim need not set forth the cause of action at all, it was worse than useless to add the words, “with the particularity required at common law,” for those words carry the implication that the cause of action must be set forth but not with that degree of particularity. The effect of this language is to do away with all objections to the statement of claim which might be made to a declaration by special demurrer and to recognize only objections going to the merits of the case. It is not contended that plaintiff’s statement of claim states a cause of action in favor of the plaintiff against the defendant. Manifestly it does not. It shows no relation of carrier and passenger, of master and servant, or of any kind; no duty owed by the defendant to the plaintiff; no negligence or wrongful act of the defendant, and no damage to the plaintiff as the' result of any act or neglect of the defendant. It does not show the nature of the tort complained of. Counsel says that “a tort is a private wrong or injury and in the case at bar the injury was fully stated.” In this statement counsel falls into the error of using the word “injury” in two different senses. This word is frequently used indiscriminately to indicate the invasion of a right and the damages resulting from such invasion. “Injury” means detriment, hurt, harm or damage, and in this sense the statement of claim may be said to set forth the nature of the plaintiff’s injury. His hand was cut and permanently injured and he suffered pain and loss of time. When it is said that a tort is a private injury a legal injury is meant which involves more than damages. A legal injury is an actionable wrong,:—a wrongful act resulting in damages. There may be damages without injury. To constitute a tort there must be the invasion of a legal right of the plaintiff,—the violation of a legal duty of the defendant. Damages suffered without the invasion of a legal right or the violation of a legal duty are damages without injury. To state the nature of the tort, therefore, it is essential to show a violation of a legal duty by the defendant. The plaintiff’s statement does not do this. It shows damages occasioned by the happening of an event for which it is not shown that the defendant was in any way responsible and which it is not shown that it was its duty to prevent. Damages are shown but not a breach of a legal duty, and therefore not the nature of the tort. The finding of the court is that the defendant is guilty as charged in plaintiff’s statement of claim, but the statement charges it with no wrong and the court finds none. The statute requires a statement showing the nature of the tort, and it was error to render judgment without it. The appellee cites and relies upon Edgerton v. Chicago, Rock Island and Pacific Railway Co. 240 Ill. 311, in which we said that actions of the fourth class under the Municipal Court act are brought without forms of written pleading, and therefore the same rule governs as controls the form of actions before justices of the peace, citing section 3 of the act. While the statement was made that such actions are' brought without forms of written pleadings, there was a statement of claim in that case, and it was held that though such statement was made in form as if the action were on contract, the judgment might be upheld as an action of tort in so far as the form of action was concerned. The facts alleged and proved justified the holding in that case and it was not necessary to refer to the provisions of section 40. It was not intended to annul the provisions of that section, and in the later case of Walter Cabinet Co. v. Russell, 250 Ill. 416, we held that the issue is made in the municipal court by the statement of claim, that the evidence must be limited by that statement, and that the issue cannot be enlarged by affidavits or oral claims. Except as provided in section 48, which has no application to cases of the fourth class of this kind, a statement of claim is necessary to the commencement of a case of the fourth class in the municipal court and as the basis of the judgment in such case, and such statement must show a legal liability of the defendant to the plaintiff. The statement of claim was not waived by the failure of the defendant to move for a more specific statement. The statement stands for a declaration in common law actions. It is essential to sustain the judgment. The rule is well settled that if a declaration is so defective that it will not sustain a judgment the insufficiency may be availed of on a writ of error even after a demurrer overruled and a plea to the merits. Chicago, Rock Island and Pacific Railway Co. v. People, 217 Ill. 164; Chicago and Alton Railroad Co. v. Clausen, 173 id. 100; Chicago and Eastern Illinois Railroad Co. v. Hines, 132 id. 161. ' The judgments of the Appellate Court and of the municipal court of Chicago will be reversed and the cause will be remanded to the municipal court. Reversed and remanded.