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Gustafson v. Consumers Sales Agency

OPINION FILED JANUARY 22, 1953.

GUST GUSTAFSON, ADMR., APPELLEE,

v.

CONSUMERS SALES AGENCY, INC., APPELLANT.



APPEAL from the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Rock Island County; the Hon. RAY I. KLINGBIEL, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 24, 1953.

Plaintiff, Gust Gustafson, as administrator of the estate of Calvin Keith Gustafson, deceased, instituted suit for damages against defendant, Consumers Sales Agency, Inc., for the wrongful death of plaintiff's intestate as a result of an alleged attractive nuisance maintained on defendant's premises. The circuit court of Rock Island County entered judgment on the jury verdict in favor of plaintiff in the amount of $5000, and the Appellate Court reversed that judgment on the ground that the complaint failed to specifically allege the names of decedent's next of kin and that they suffered pecuniary damages. This court has allowed plaintiff's petition for leave to appeal.

The salient issue presented by this appeal is whether the defects of the complaint, interposed for the first time on review, constituted reversible error. A secondary issue, urged by defendants, but not considered in the Appellate Court's opinion, is the sufficiency of the evidence to establish an attractive nuisance.

The complaint, as amended, alleged in substance that plaintiff is the duly appointed administrator of the estate of Calvin Keith Gustafson, deceased; that defendant owned certain premises which it negligently failed to grade so that water was permitted to collect in the ravines thereon to a depth of some fifteen feet in certain portions; that there were sticks, logs and other objects afloat and frozen in this artificial watercourse, which was open and unguarded even though located adjacent to public streets and in close proximity to thickly populated districts; that this watercourse constituted an attractive nuisance to children of tender years who would be attracted to the situs and liable to fall into the water; that defendant knew long prior to January 14, 1950, or by the exercise of ordinary care could have known that children played there; that plaintiff's intestate, a child of seven, lived near these premises, and was attracted to such floating objects in the open and unguarded watercourse, and while at play thereon at 4:45 P.M., January 14, 1950, and as a direct result of defendant's negligence in maintaining the attractive nuisance, plaintiff's intestate unavoidably fell into the water and was drowned; that as a consequence of defendant's negligence which caused the death of said Calvin Keith Gustafson, plaintiff suffered damages in the amount of $15,000.

The evidence adduced at the trial revealed that on January 14, 1950, Calvin Keith Gustafson, age seven, together with two friends aged five and six, went to the pond on defendant's premises. One of the children, Billy Roberts, testified that he and Calvin slid on the ice and that Calvin fell in a hole in the pond. Billy ran home to tell his mother, and she testified that after the boy pointed out the hole in the ice to her, they went to notify Calvin's mother. She further stated that the Gustafson's have only one other child, a boy named Wayne, age twelve.

When Mrs. Gustafson saw the hole in the ice she knew the child was down there, and three members of the fire department, who were summoned, put a 28-foot ladder on the ice to support one of the firemen while he probed for the body with a pole. After probing some twenty minutes they recovered the body of the boy who was pronounced dead on arrival at the hospital.

Mrs. Gustafson testified that she was the mother of the deceased child, that her husband's name was Gust, and that they had only one other child, Wayne, age twelve.

A fourteen-year-old boy testified that he had been sliding on the pond about two weeks before, and also had seen other boys and girls sliding there just two days before the accident, when the ice was wet and partly melted. Another child and her mother testified that the child had been sliding on the pond and fell into water up to her waist some two weeks before this accident. The mother, not knowing who owned the property, notified the police of the occurrence. One of defendant's officials denied any knowledge of children sliding on the pond, although subsequently he admitted chasing children off the property several times, despite the fact that a no-trespassing sign was posted.

Evidence was further adduced that the pond was clearly visible from the back yard of one of the children with whom the deceased customarily played, and that the watercourse was completely filled in two months after the accident, although deemed too expensive a project when contemplated some time prior to the accident. Plaintiff's exhibits of the pond, introduced in evidence, revealed that it was partially frozen and contained numerous floating objects, including a five-gallon drum.

On the basis of the foregoing facts, the jury returned a verdict for plaintiff in the amount of $5000. The court entered judgment on that verdict, and denied defendant's motion for judgment notwithstanding the verdict, which was directed to the sufficiency of the evidence to establish an attractive nuisance.

On appeal therefrom, defendant urged as grounds for reversal plaintiff's failure to allege the names and number of the decedent's next of kin, or that they suffered pecuniary loss, and the Appellate Court held that such omissions constituted reversible error.

In adjudging whether this pleading contained a sufficient allegation of the elements necessary to assert a right to recover under the Wrongful Death Act (Ill. Rev. Stat. 1951, chap. 70, pars. 1 and 2,) it is incumbent upon this court to construe that act together with the provisions of the Civil Practice Act, and other applicable procedural statutes and concepts. Metropolitan Trust Co. v. Bowman Dairy Co. 369 Ill. 222.

Under the Wrongful Death Act, it has been held that it is necessary to allege that decedent had next of kin and that they suffered pecuniary damages. (North Pier Terminal Co. v. Hoskins Coal and Dock Corp. 402 Ill. 192; Wilcox v. Bierd, 330 Ill. 571; Foster v. St. Luke's Hospital, 191 Ill. 94.) It is uncontroverted, however, that the complaint herein contains several references to plaintiff's intestate. The decedent, a seven-year-old child, is referred to throughout the complaint as plaintiff's intestate, and it appears that the plaintiff ...


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