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Opal v. Material Service Corp.

APRIL 2, 1956.

S.A. OPAL, ET AL., APPELLANTS,

v.

MATERIAL SERVICE CORPORATION, APPELLEE.



Appeal from the Circuit Court of Cook county; the Hon. J.H. MINER, Judge, presiding. Order reversed and cause remanded for trial with directions.

PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 23, 1956.

This cause, No. 46751, hereinafter referred to as the Opal case, and cause No. 46750, referred to as the Dorsey case, present common questions and issues of law and were heard concurrently in the Circuit Court on similar motions to strike the second amended complaint. Pending the appeals, we here entered an order, on motion of defendant in the Opal case, consolidating the two causes for hearing and argument. The Circuit Court sustained defendants' motions to dismiss the second amended complaints in both proceedings on the grounds of insufficiency, multifariousness, and misjoinder of parties, and plaintiffs in both cases appeal. This opinion decides only the issues presented in the Opal case, No. 46751.

Four plaintiffs here brought suit against the Material Service Corporation. Count I of the second amended complaint alleges that plaintiffs are residents and owners of homes in the Village of Brookfield; that defendant owns and operates a stone quarry located in Lyons, Illinois; that in the operation thereof defendant has used explosives for the purpose of blasting so that it might more readily effect the removal of rock and other materials in the quarry; that plaintiffs' premises are located in residentially zoned sections of the Village of Brookfield, and that all the residences are close to the quarry of defendant; that these premises, buildings and other improvements were in good substantial condition, intact, rested upon undamaged foundations, safely joined and wholly undamaged in structure until the alleged wrongful acts of defendant, as charged in the complaint, occurred; that defendant, in the blasting of rock or other materials in the quarry, by use of explosives during the past five years, and especially the period during the year prior to the filing of suit, disturbed or shook the strata of stone, shale or earth for great distances, including the land, soil and materials on or under the real estate of plaintiffs, and as a natural consequence violent vibrations were produced in the premises of plaintiffs which, as a proximate result thereof, damaged the property of plaintiffs, and that defendant still continues so to blast in said quarry and to damage their premises; that during the past five years, and especially during the year immediately preceding the filing of suit, defendant frequently used and is presently using excessive charges of explosive material and equipment in its quarrying operations, causing thereby tremendous detonations, the effect of which is heard and felt for miles, to the annoyance of plaintiffs and others in the village; that the blasts are of such violent nature that they produce shock, act in effect as an earthquake, and cause buildings to shake and tremble, thereby having caused and still causing material damages to plaintiffs' premises; that during the period prior to suit defendant set off numerous charges of dynamite or other violent explosives and blasted rock or excavated land or soil which caused and produced violent explosions, penetrating the lands of plaintiffs that were naturally and as a result of the explosions transmitted through the earth and other strata and through the air to the lands and properties of the plaintiffs, and resulted in shaking, trembling and displacement of the buildings and structures of the plaintiffs, and caused settling and cracking of the buildings, and other damage; that all the properties of the plaintiffs were within such proximity to the quarry of the defendant that, by reason of the rock strata underlying their homes, the explosions damaged their properties.

The complaint further alleges that plaintiffs at all times exercised ordinary and reasonable care to avoid any loss or damage sustained as a result of defendant's acts but states that defendant failed to use reasonable and ordinary care and was negligent in the operation of its quarry and in the setting off of said explosives, and did carelessly and negligently set off divers dangerous charges of explosives in unreasonable quantities thereof with undue force and violence, and did thereby unreasonably or unnecessarily shake, break, and damage the premises of the respective plaintiffs; that the explosives used in the quarry operations were intrinsically dangerous, and defendant failed to use reasonable means or methods to prevent violent and dangerous vibrations in the rock strata or subsoil extending from the place of explosion to plaintiffs' premises, whereby the premises were so shaken as to damage the property of plaintiffs, and that the damage was a direct and proximate result of the explosions caused by the actions of defendant.

It is further alleged that defendant detonated explosive material in and about the operation of its quarry in violation of its duty to use, run, maintain and operate the said quarry so as to avoid damage to the property of plaintiffs; that the blasting constituted such an annoyance and harassment of all and sundry persons and property in and about the quarry and surrounding territory as to be a continuous nuisance causing continuous damage to the premises of plaintiffs and constituting a menace to their health; that the blasting creates explosions of magnitude, jarring plaintiffs and their property all hours of the day and night, and causing continuous great disturbing noises and vibrations; that as a result thereof plaintiffs are prevented from enjoying their property, and their residences are rendered unhealthful and less fit for occupancy and are being depreciated in value; that plaintiffs have no adequate remedy at law, and unless defendant is restrained from further continuing its blasting operations so as to constitute a nuisance, the unlawful acts will continue. The prayer of the complaint is for a temporary and permanent injunction, but no temporary injunction was applied for or granted.

Count II of the complaint realleges all matters in Count I and in addition charges that the action of defendant was wilful, that the residences of all the plaintiffs were damaged, and sets forth in figures damages to the respective plaintiffs in amounts varying from $1,000 to $2,500. Count II seeks judgment and punitive damages in double the amount of actual damages.

Defendant moved to strike and dismiss Count I or, in the alternative, asked for an order requiring plaintiffs to make definite certain portions of Count I for the following reasons: plaintiffs fail to allege a cause of action against defendant; they are unable to state an equitable cause of action, and they have an adequate remedy at law; the complaint is vague and ambiguous and does not contain such information as to reasonably inform defendant of the nature of the claims of the several parties; Count I fails to show what act or acts of negligence on the part of defendant occasioned the alleged damage or injury, and, further, it fails to specify any particular date or time as to when the alleged damage or injury occurred as the result of any particular acts of defendant; Count I contains allegations as to purported responsibility of defendant which are mere conclusions of the pleaders and not ultimate facts upon which relief can be granted; such general allegations do not constitute a plain and concise statement of the pleaders' purported cause of action as required under the Civil Practice Act and the Rules of the Supreme Court; and the allegations contained in paragraphs 5 through 11 of Count I are not averments of ultimate facts, but are, rather, mere conclusions of the pleaders.

Without waiving the right to have Count I of the second amended complaint dismissed without further leave to amend, should the court deny the motion to dismiss, defendant asks in the alternative that, pursuant to the provisions of sections 42 (1) and 45 of the Civil Practice Act [Ill. Rev. Stats. 1955, ch. 110, §§ 42, 45] an order be entered requiring plaintiffs to make more definite and certain Count I in the following particulars: (1) the exact date or dates, if any, when defendant is alleged to have performed any of the acts complained of in paragraphs 5 through 11 of Count I; (2) the date or dates, if any, when the first damage occurred; (3) a statement of the proximity to the quarry of defendant, in miles or fractions thereof, of the premises of each of the plaintiffs; and (4) the manner in which the use of explosives was excessive, specifying the nature of the charges. In their motion to dismiss Count I defendant asked that plaintiffs be given no further leave to amend.

The motion directed to Count II asked that it be dismissed or, in the alternative, that the court enter an order requiring plaintiffs to make definite certain portions of Count II or, in the further alternative, that the multiple causes of action be severed for the following reasons: (1) that Count II is wholly insufficient for failure to state a claim against defendant; (2) that there is a misjoinder of causes of action; it raises no common substantial question of law or fact which would entitle plaintiffs to join their various causes of action; from the face of the complaint it appears that the several plaintiffs claim separate and distinct causes of action for damages alleged to have occurred to the several improvements standing upon the real estate owned by them respectively; (3) that the relief sought by the several plaintiffs does not grow out of the same transaction or series of transactions; (4) that there is a misjoinder of parties plaintiff since the real estate is owned separately, and no common cause of action exists, and each plaintiff is asking for separate and distinct damages which are alleged to be due them severally and not jointly, or not jointly and severally; (5) that the complaint is vague and ambiguous and does not reasonably inform defendant of the nature of the several claims of the parties plaintiff; (6) that it seeks to recover punitive damages without alleging any basis in law or in fact therefor; that Count II makes general allegations as to the purported responsibility of defendant which are mere conclusions of the pleaders and not ultimate facts upon which relief can be granted; that such general allegations do not constitute a plain and concise statement of the pleaders' cause of action, and are not in conformity with the Civil Practice Act and the Rules of the Illinois Supreme Court; and (7) that Count II fails to set forth what act or acts of negligence on the part of defendant occasioned the alleged damage or injury to the several plaintiffs, and fails to specify the dates or times as to when these damages occurred.

The motion to dismiss Count II also seeks, in the alternative, that, pursuant to sections 42 (1) and 45 of the Civil Practice Act, an order be entered requiring plaintiffs to make more definite their said Count II in particulars similar to those set out in defendant's motion with respect to Count I.

Accompanying the motion to dismiss Count II was a request by defendant that the several causes of action be severed since, as they state, the issues will be hopelessly confused in the minds of the jurors because of the numerous parties and causes of action joined together; no economy or convenience is effected by the consolidation of the several parties and the several causes of action; the several properties of plaintiffs and the alleged damages to their properties are wholly different in nature, in location and in extent; the acts complained of are wholly different and were occasioned at various distances from the location of the several properties of the plaintiffs at wholly different times; defendant believes no jury can allot each item of the testimony to its relevant issue, confining such testimony to that issue, and keeping the issues separate so as to render an intelligent verdict; a great number of parties and issues joined increases the possibility of error which would delay the final disposition of the action and increase the expense of litigation; almost every witness will testify to the claim of one plaintiff only, and would have no logical relevancy to the claims of the others, yet the cumulative effect of the irrelevant testimony would be highly prejudicial to defendant; and plaintiffs are not suing to enforce a common right since their respective interests are personal. Defendant sought the dismissal of Count II or, in the alternative, asked that an order be entered requiring plaintiffs to make the count more definite and certain, or, as a further alternative, that the multiple causes of action be severed.

Aside from charges of misjoinder of parties and multifariousness, which will be discussed later in this and the Dorsey opinion, defendant's motion to dismiss both counts of the amended complaint is predicated on plaintiffs' failure to state a cause of action, on the vagueness and indefiniteness of the complaint, on plaintiffs' failure to show specific acts of negligence such as the exact time or dates when damage occurred, their failure to equate the damage with specific explosions, to state the precise place where and the periods when the blastings were set off, the amount of explosive material used, and the condition of the subsoil when the blasts took place. This data is, for the most part, contained within the records of defendant and is peculiarly within its knowledge; under fundamental rules of pleadings, plaintiffs are not required to allege facts which are, to a much greater degree of exactitude, within the knowledge of defendant rather than of plaintiffs.

All the essential allegations for injunctive relief are contained in Count I. It alleges that plaintiffs are residents and owners of buildings located close to defendant's quarry; that defendant has set off explosive material in connection with the operation of the quarry; that the blasting creates explosions of magnitude jarring plaintiffs and their property at all hours of the day and night and causing great and continuous noises and vibrations of the subsoil; that excessive amounts of explosive material are used; that ordinary care was exercised on the part of plaintiffs, that defendant was guilty of general negligence; that the injuries complained of resulted from the blastings and constant explosions, constituting a ...


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