Miller v. S. S. Kresge Co.
137 N.E. 385
Ill.
1922
Check Treatment
Mr. Chief Justice Thompson

delivered the opinion of the court:

This cause is brought to this court by certiorari to review a judgment of the Appellate Court for the First District reversing a judgment of the circuit court of Cook county.

Plaintiff in error stated in her declaration that defendant in error owned and operated a store in the city of Chicago; that on October 30, 1916, the store was open to the public; that she went into the store as a patron for the purpose of purchasing articles there displayed for sale; that it was the duty of defendant in error to maintain its floors and aisles in a reasonably safe condition for passage; that it “wholly failed in its duty in this behalf, and, on the contrary, suffered and permitted a certain object or substance to then and there be and remain upon the said floor,” and that while she, in the exercise of due care and caution for her own safety, was walking upon the floor she slipped upon said object or substance and fell and broke her leg. A demurrer to this declaration was sustained, an amended declaration was hied after the two-year period had expired, a plea of the general issue and a plea setting up the Statute of Limitations were filed, issue was joined on these ;pleas and on the trial a verdict was returned for the plaintiff. Motions to direct a verdict and in arrest of judgment were made and overruled. The Appellate Court held that the original declaration did not state a cause of action, that the cause of action stated in the amended declaration was barred, and that a verdict for defendant should have been directed. The sole question presented for review in this court is whether the original declaration stated a cause of action.

A declaration should contain a clear and distinct statement of the facts which constitute the cause of action so they may be understood by the party who is to answer them. (City of Chicago v. Selz, Schwab & Co. 202 Ill. 545; Chicago City Railway Co. v. Jennings, 157 id. 274.) In actions growing out of personal injuries it is necessary to aver and prove three elements to make out a cause of action: First, the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; second, a failure of the defendant to perform that duty; and third, an injury to the plaintiff resulting from such failure. (McAndrews v. Chicago, Lake Shore and Eastern Railway Co. 222 Ill. 232.) The first and third elements clearly appear in the declaration in this case. The question is whether the declaration charges that defendant in error failed to perform the duty which it owed to its patron, plaintiff in error. No special form of words is required to state the negligence on which the right of action is based. It is not necessary to explicitly say of the defendant that he was guilty of negligence. It is sufficient if the facts stated are such as to raise a duty and show a failure to perform that duty and a resulting injury from which the law will attach to such failure of duty the charge of negligence. (Illinois Steel Co. v. Ostrowski, 194 Ill. 376; Taylor v. Felsing, 164 id. 331.) A general averment of negligence in doing a particular act is good as against a general demurrer. We have repeatedly held that although there is a defect, imperfection or omission in a declaration, of substance or form, which would have been a fatal objection upon a proper demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict. Chicago, Burlington and Quincy Railroad Co. v. Harwood, 90 Ill. 425; Chicago and Alton Railroad Co. v. Clausen, 173 id. 100; Hinchliff v. Rudnik, 212 id. 569; Sargent Co. v. Baublis, 215 id. 428; Grace & Hyde Co. v. Sanborn, 225 id. 138.

The declaration before us is, to say the least, carelessly and imperfectly drawn, and consists of general charges, in legal phraseology, of duty and negligence without directly averring specific facts. A declaration which states no cause of action will not sustain a judgment, but a declaration which is a defective statement of a cause of action is good after verdict. This is especially true in actions of tort for negligence, where the fault of the declaration is the generality of the statement concerning the negligence charged. It is not altogether easy to draw with precision the line on one side of which will fall declarations which, because of the generality of their language, state no cause of action, and on the other side declarations which for the same reason defectively state a cause of action. The main purpose of a pleading in courts of law is accomplished when by reasonably intelligible allegations the opposing party is advised of the case to be made against him, and we think no one familiar with the use of the English language could fail to gather from the declaration filed that defendant was, as the proprietor of a retail store, accused of a breach of its duty of keeping the aisles of the store reasonably safe for the use of its customers. It is certainly true that it leaves much to be desired in particularly describing the negligence which caused the injury to the plaintiff in error, and the declaration was clearly subject to special demurrer. Though imperfectly stated, the declaration before us in effect charges defendant in error with omission to fulfill its duty to plaintiff in error by failing to maintain its aisles in a reasonably safe condition for passage along them, by suffering and permitting a certain substance to remain upon the floor of said aisles, upon which plaintiff in error slipped and fell. The Appellate Court erred in holding that the original declaration did not state a cause of action.

If the question decided by the Appellate Court were the only question in this case the views we have expressed would require a reversal of the judgment of the Appellate Court and an affirmance of the judgment of the circuit court, but that is not the condition of the record. The judgment of the Appellate Court being based upon an erroneous view of the law with respect to one point which it held disposed of the whole case, it is necessary for us to remand the case to the Appellate Court so that it may consider and pass upon meritorious questions properly raised by assignments of error in that court which it has not considered or decided. (Logan v. Mutual Life Ins. Co. 293 Ill. 510; Armstrong Paint and Varnish Works v. Continental Can Co. 301 id. 102.) The argument of counsel on points other than the one decided by the Appellate Court is not properly directed to this court until the questions have been decided by the Appellate Court.

The judgment is reversed and the cause is remanded to the Appellate Court for the First District.

Reversed and remanded.