Dama v. Kaltwasser

Mr. Presiding Justice Adams delivered the opinion of the Court. The only assignment of error relied on by plaintiff’s attorney is that “ the declaration is so defective that it will not sustain the judgment.” The question whether the declaration is defective is not open for discussion, because if defective, the defect is cured by the verdict. Lusk et al. v. Cassell et al., 25 Ill. 209; Ill. C. R. R. Co. v. Simmons, 38 Ib. 242; Toledo, P. & W. Ry. Co. v. McClannon, 41 Ib. 238; Demesmey v. Gravelin, 56 Ib. 93; Barker v. Koozier, 80 Ib. 205; Clinton W. C. Co. v. Gardner, 99 Ib. 151. In Ill. C. R. R. Co. v. Simmons, supra, which was case for negligence, the declaration did not contain the necessary averment that the plaintiff exercised ordinary care, and the appellant assigned this omission as error, but the court held that the omission was cured by verdict, saying: “ The majority of this court is inclined to the opinion that if the declaration was defective in that particular, it is cured by the verdict. The principle is, ' when anything is omitted in the declaration, though it be matter of substance, if it be such, that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such an omission shall not arrest the judgment,’ ” citing Tidd, Chitty and other authorities. Whether the rule thus announced would apply to a case in which the record purported to contain all the evidence, and in which it appeared that there was no evidence of a fact essential to a recovery, is a question not presented by the record in this case; but that it does apply to cases in which, like the present, the evidence has not been preserved by bill of exceptions, we have no doubt; the presumption being, in the absénce of evidence to the contrary, that the trial court would not have allowed the verdict to stand in the absence of proof of all the facts essential to a recovery. The judgment is affirmed. Mr. Justice Sears took no part in the decision of this case.