*1 (No. 44188. CITY DEKERKHOV, v. THE Appellee,
GUSTAVE VAN HERRIN, OF Appellant. rehearing on denial March Opinion 1972. Modified filed May GOLDENHERSH, J., part. took no DAVIS, J., dissenting. TROUTT, Benton, ELMER JENKINS JEFF
for appellant. HANEY, Herrin, THOMAS W. E. JOHN CRAIG, Vernon, CRAIG & JACOBSEN, Mt. appellee. SCHAEFER delivered the court;
The Gustave Van Dekerkhov, plaintiff, this brought action under the Structural Work Act (Ill.Rev.Stat. defendant, pars. against 69) City 60— Herrin. circuit court Williamson County granted defendant’s motion to dismiss the for failure to state a of action, cause and also leave granted to file an amended within days. however, elected to stand on his
plaintiff, entered for the defendant. The Appellate Court, Fifth District, remanded, reversed and with one and we judge dissenting granted Ill.App.2d 952), (130 *2 leave to appeal. that the defendant was alleged complaint
owner of a block of “and in the business buildings of, had and control the demolition process charge said It also “was buildings.” alleged Vander, foreman and laborer employed by John contractor, demolition removal engaged of said that there were scaffolds erected buildings;” the defendant as statute, and that as a required by of the result defendant’s wilful violation of the statute the injured. The narrow issue is the of the allegation the defendant “had of” the That charge inis of the allegation statute, which language imposes “ owner, contractor, liability ny sub-contractor [a] *** foreman or other removal person having charge *** ***” who any fails building wilfully comply with its from the provisions. Apart defendant owned the demolished, buildings being states no facts from which it be concluded that the defendant “had of” the Under demolition. the construction of the Act announced in Kennerly Shell Oil Co. the fact of (1958), ownership, alone, sufficient, cases, would have been in most standing sustain But that construction was overruled liability. Milwaukee, Gannon v. Paul St. Ry. Chicago, Pacific 22 Co. Ill.2d which that unless an owner held (1961), “has he not liable under the Act. is There are cases which discuss the assertion “in of” in connection with a unsupported motion for summary judgment Missionary (Kaminski Sisters Sacred Heart 62 (1965), Ill.App.2d 216),
in an instruction jury (Larson we are far as but so Edison Co. 316), (1965), of such the sufficiency the first case involving aware this is aby when challenged in a -a naked motion to dismiss. tort to assert
A sought but that the defendant liability negligence, alleged only the act in has been held “negligently” performed question, to be to dismissal. Richardson v. Eichhorn subject (See out, As has been (1958), pointed 273.) line between “ultimate” facts and “conclusions of law” is drawn. v. Prudence Mutual easily Casualty (Herman Co. The same allegation may (1969), in one context be deemed one of fact, to be while “*** in another, where from a some pragmatic viewpoint of these words do not sufficient information to an give of the character of evidence to be introduced or opponent tried, the issues to be are held to be legal law, facts, conclusions. What what are what *3 evidence, for can determined only pleading purposes, practical careful consideration of the task by McCaskill, Illinois litigation.” administering particular Anno., Practice Act Civil p. (1933). contains two in this case do not
which, if are certainly they contradictory, to be consistent. It is their face alleged: (1) appear upon “foreman was the employed who engaged the contractor laborer” general had that the defendant the demolishing buildings, (2) the same of demolishing of and was in the process is at in the complaint The situation described buildings. an afforded although best ambiguous, plaintiff, do so. refused to remove the ambiguity, opportunity from circumstances, resulting either there were If the owner between of the contract terms demolish had owner whom the employed contractor the conduct parties or from buildings, had retained contract, which indicated that the owner control, been in an amended should have stated they kind of Numerous cases have described the complaint. or that an owner conduct contractual terms which indicate retained has Larson “charge.” (See, e.g. 316;
Edison Co. 33 Ill.2d Kobus v. Co. (1965), Formfit When one of who was (1966), plaintiff, those whom the refused upon statutory duty imposed, to take afforded him to advantage opportunity amend his to show what he based his claim that the owner “had of” the the trial court was warranted in his dismissing therefore judgment court appellate reversed and the of the circuit court of William- son is affirmed. County reversed;
Appellate circuit court affirmed. MR. GOLDENHERSH took part JUSTICE consideration decision of this case. DAVIS, dissenting:
As stated the issue is the majority, legal the defendant “had If these words constitute a statement sufficient; fact, of ultimate if are they legally they of law, conclusions are then insufficient. legally We have observed that there are instances in which the line between facts,” statements “ultimate “evidentiary facts,” and fact,” “conclusions of law or is not easily drawn v. Prudence Mutual (Herman Casualty and we have recognized long 475), “ultimate,” should as to “evidentiary,” plead opposed his v. Home Bank and Trust complaint. (Levinson *4 Co., 241, 337 Ill. distinction existed under This 244.) been maintained has pleadings, of the Civil Practice Act. Zimmerman interpretation (See: Willard, 364, 370; Matual, v. 114 Ill. O’Brien v. 173, 188, 189; 1969, 110, ch. par. If a the ill-defined demarcation
33.) complaint transgresses between an “ultimate fact” a “conclusion law” other factual unsupported by allegations, penalty is its dismissal on transgression motion. Pierce v. 526, 531; 20 Ill.2d Leitch Carpentier, District Sanitary 469, 472, 369 Ill. Chicago, A rule of law which recognizes the demarcation of its complaint depends upon allega tions into classifications within an undefined penumbra! area, is both harsh and unworkable. A review of the works of authors on as well as numerous cases which pleading, conclude either that a certain was a ultimate fact or a conclusion of law or fact, is not of much assistance, where the occurs under similar except circumstances. Foss v. Gas and Coke (See: People’s Light 241 Ill. in case, the most unusual 246.) Except could, with certain either logic, justify reaching result.
The rule is even harsher when it realized that a tois “ultimate” as to “eviden- allege opposed facts, and a motion tiary” to dismiss is held not to yet admit “conclusions fact” unsupported by allegations are based. specific Gouker (E.g., Board Winnebago County Supervisors, 479; Pierce v. Ultimate Carpentier, facts must of extent, to some conclu- necessity, represent sions drawn from facts.
In the circumstances, these it would seem light of a the substan determining tial and the mandates of the Civil Practice Act objectives should be exalted observed. Substance should be over end construed, form. Act is be “liberally be controversies determined finally speedily to the substantive and the according rights parties,” “rule that statutes common law derogation construed does not to this Act or to the strictly apply rules made thereto.” pursuant (Ill.Rev.Stat.
379 4; Fleshner 72, v. par. Likewise, Copeland, “be to a to pleadings liberally construed with view substantial between doing justice and “No parties,” is bad in substance which pleading contains such informa- tion as informs the of the nature reasonably opposite party of the claim or defense which he called is to meet.” upon 1969, ch. 110, pars. 33(3), 42(2). In Kita v. Y.M.C.A. 47 Metropolitan Chicago, of the court reviewed the Ill.App.2d of system reforms, its pleading, of code development and considered pleading, to extensively requisites a cause of action stating under the Civil Practice Act. The noted its throughout critical elucidation the evasive illusion which confronts the courts in distinguish- ing facts from of conclusions law fact and decided that a reasonably allega- intelligent tions, sufficient to advise the of opposing party the case which the will seek to and that a prove, court, in whether the determining is to complaint adequate meet test, this must examine the with the complaint admonitions of liberal construction and reasonableness mind. erect not to
The Civil Practice Act was enacted to barrier technicalities and niceties pleading merits, on rather the trial a case its but prevent real to be determined issues controversies permit The between the substantial parties. according justice a a that it contain requisite only plain cause of action. concise statement pleader’s (Ill. its test of The Rev.Stat. par. 33(1).) defendant of a valid whether it informs the 78 claim cases. class Lemay, Fanning Ill.2d 166, 171, other 38 rev’d on grounds, Ill.App.2d The refers to Sisters Kaminski majority Missionary Heart, held that Sacred “in defendant was that the other factual unsupported any in consider- to be disregarded conclusion
allegations, think that do not I for summary a motion judgment. ing of the issue before us. determinative case is Rule 15 Court referred to the then (presently Supreme R. relating Rule Court 191) Supreme for summary a motion of affidavits under not “shall that such affidavits which stated judgment, in evi- admissible conclusions, but consist the court Kaminski would with agree dence.” work is of” certain one “in *6 fact, and that such an appropriate I a summary not judgment. affidavit would an support this. no more than believe that Kaminski says Co., Edison In Larson the referred to majority, principal also an erred in the trial court giving was whether question stated that which plaintiff instruction jury work of the had the defendant-owner charge establish control and work” such “by retaining being supervision a contractor. The court held that performed to control and restrictive language relating supervision not and remanded the for a new trial. At cause appropriate “Thus, while the actual court stated: page the work and the exercise and control over supervision it, or the retention of the so doing right persons on the control, be factors may bearing supervise ‘in of whether an owner is ultimate question factual are not or conclusive factors ***.” charge,’ necessary that the And, we concluded statutory added.) (Emphasis words of” were of common “having charge usage no definition. The and needed further understanding decision there was that the should be instructed jury which the recover, in order to one of the ultimate facts of the evidence a must establish by preponderance is that the owner “had did deal in with the issue we not Larson
Admittedly, rationale However, it that the now before us. would seem Larson, aid, to the extent can here be precedent would that the was sufficient. finding support Larson, In held that the words “having charge of” was a that did not factual situation phrase describing need for determina further factual definition the jury’s in that it does not tion. When considered posture, appear to now words appropriate say statutory “having of”—words of common usage understanding needed no definition to a further factual lay not fact constitute an jury—do testing purpose believe that the that the defendant “had of” the work advised the defendant of the case reasonably which the would seek prove. pars. 33(3), 42(2). cause action should be dismissed on the unless it set of facts can
pleadings
clearly appears
be
which will entitle the
proved
pleadings
to recover. Herman v. Prudence
plaintoff
Mutual Casualty
rev’d in
on other
part,
part
aff’d
circumstances, either from the terms resulting contract between contractor, the owner and the *7 from their conduct, which indicate that the owner might did have of the work, and states that these circumstances should have been set forth in an amended
However, this, a case such as it seems highly facts plausible complete evidentiary might become available known to the until after his lawsuit Jinle, At filed. same avenues many to the defendant to determine protection open exactly what facts must be met: a bill of evidentiary particulars, admissions fact and of discovery, genuineness documents and answers If it is determin- interrogatories. ed there are no facts to support claim, the defendant can avoid the time
plaintiff’s of trial through summary judgment expense procedures. with the agree appellate contained sufficient the motion to and would affirm withstand dismiss of that court. (No. 43353. WILLIS,
THE PEOPLE ex rel. DAN v. THE Appellant, CORRECTIONS, DEPARTMENT OF Appellee. May 1972. Rehearing denied Opinion April filed WARD, J., part. took GETTY, Defender, of Chicago
GERALD W. Public Defender, of AMENOS, Public N. GR Assistant (JAMES for counsel), appellant. General, of SCOTT, WILLIAM Attorney Springfield J. STREICKER, R. Assis- B. ZAGEL
(JAMES JAMES General, Attorneys appellee. counsel), tant DAVIS delivered the court: se Willis, Dan filed petition pro petitioner, he labeled
the circuit court Cook County