delivered the opinion of the court.
Ferreira v. Diller, 193 Ill. App. 551 (1915)
April 16, 1915
·
Illinois Appellate Court
193 Ill. App. 551
Arthur W. Ferreira, by John H. Ferreira, Defendant in Error, v. Isaac R. Diller, Plaintiff in Error.
(Not to be reported in full.)
Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
Heard in this court at the October term, 1914. Rehearing denied, opinion modified and filed May 26, 1915.
Affirmed on remittitur.
Opinion filed April 16, 1915.
Statement of the Case.
An action on the case by Arthur W. Ferreira, by his next friend, John H. Ferreira, against Isaac ft. Diller to recover damages for personal injuries sustained by the plaintiff when run over by an automobile operated by the defendant. From a judgment in favor' of the plaintiff for $4,000, the defendant prosecutes a writ of error.
This cause has been tried three times, this being the second appeal to this court. The facts are fully stated in the opinion filed at the former hearing. (See Ferreira v. Diller, 176 Ill. App. 447.)
A demurrer was sustained to the third, fourth and fifth counts of the declaration and leave was given plaintiff to amend. He amended the third and fourth counts, by erasing certain lines, and the fifth count by changing the word “or” to “and” on the copy of the original declaration, and not on the original amended declaration. The copy as amended was then refiled and the plaintiff in error then filed a plea of general issue. The plaintiff in error insists that as the fifth count was held bad on demurrer and was not amended, and as the original amended declaration was not refiled, it was error for the court to submit the case to the jury.
The evidence of all the disinterested witnesses tended to show the boy was not nearly as badly injured as he thought he was.
*552Abstract of the Decision.
1. Pleading, § 237 * —when amendment made on copy of declaration sufficient. Where amendments to a count of a declaration were made with leave of court after the sustaining of a demurrer, on a copy of the declaration and not on the original, and the copy was refiled, the defendant cannot object after verdict that the amended count should not have been submitted to the jury, where he pleaded thereto and went to trial without requesting that it be excluded.
2. Damages, § 115*—when damages for temporary injury to hoy excessive. Where a verdict was returned in favor of a boy for $4,000 for temporary injuries sustained by being struck by an automobile, held that the defendant would be granted a new trial unless $1,500 was remitted by the plaintiff.
Robert H. Patton and Patton & Patton, for plaintiff in error.
Thomas L. Jarrett and Graham & Graham, for defendant in error.