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Kita v. Ymca of Metropolitan Chicago

APRIL 8, 1964.

SANDY KITA, A MINOR, BY MARY KITA, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

YOUNG MEN'S CHRISTIAN ASSOCIATION OF METROPOLITAN CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 6, 1964.

An action was brought by Sandy Kita, a minor, by Mary Kita, his mother and next friend, hereafter referred to as the plaintiff, against Young Men's Christian Association of Metropolitan Chicago, hereafter referred to as the defendant.

The plaintiff sought to recover damages from the defendant because of its alleged negligence in the operation of a day camp for children. The trial court sustained a motion to dismiss the second amended complaint and to dismiss the cause of action. From that order this appeal is taken.

It appears from the complaint that the plaintiff, aged nine, was a paid-up member of an eight-week summer day camp for minor male children, which was conducted at various places outside defendant's premises under supervision and direction of employees and agents of the defendant.

On July 20, 1959, the defendant, through its agents and servants, took the group to the Cook County Forest Preserve on Milwaukee Avenue near Devon Avenue, Chicago, Illinois. The plaintiff climbed a large tree from which he fell onto a picnic table, injuring himself thereby.

The second amended complaint had two counts; one sounding in tort and one sounding in contract. In this court the defendant contends that the complaint was properly dismissed in the trial court, since it does not allege facts "showing any breach of duty owed by the defendant to the plaintiff or that the defendant acted or failed to act in such a way as to impose liability upon it. . . ." The plaintiff's contention is that the second amended complaint properly states a cause of action.

In determining the contentions before us it will be necessary to consider and interpret certain sections of the Illinois Civil Practice Act. This Act was adopted and became the law of the State in 1933. Prior to that time there was a sharp division between equity and law practice. Law practice followed the common law rules of pleading and procedure except insofar as they were modified by the Practice Act then in existence. In spite of the provisions of that Practice Act a declaration which followed the form set out in Chitty would probably not be amenable to demurrer.

In Holdsworth, History of English Law, 3d Ed, vol II, 251, it is said:

"One of the most difficult and one of the most permanent problems which a legal system must face is a combination of a due regard for the claims of substantial justice with a system of procedure rigid enough to be workable. It is easy to favour one quality at the expense of the other, with the result that either all system is lost, or there is so elaborate and technical a system that the decision of cases turns almost entirely upon the working of its rules and only occasionally and incidentally upon the merits of the cases themselves." *fn1

In England, under the common law system, pleadings became rigidly formal and the pleading had to fit into the form of action intended to be alleged. In Slade v. Drake, Hob 295, 80 Eng Reprint 439, 1618, Chief Justice Hobart cited Littleton to the effect that "the pleading is the honourable, commendable, and profitable part of the law, . . . and therefore it is required that pleading be true; that is, the goodness and vertue of pleading; and that it be certain and single, and that is the beauty and grace of pleading."

In Pollock's "The Genius of the Common Law," c III, Surrebutter Castle, at p 27 (1912 Ed), it is said: "Perverse ingenuity, once let loose on the art of pleading, went for some centuries from bad to worse, notwithstanding occasional mitigations." It is further said: "We may now proceed to see what the bastard formalism of pleading had come to in England in the second quarter of the nineteenth century, . . ." Reference is made to Hayes' "Crogate's Case" which was a rather savage satire, supposed to be a dialogue in Hades on Special Pleading Reform between Baron Surrebutter (Baron Parke) and Crogate. The Baron is attempting to point out to Crogate the necessity and elegance of the decision in "Crogate's Case," 8 Co 66. Crogate asks the Baron if there are no courts where one can get justice without any special pleading. The Baron replies that there are certain courts which were instituted because of an "idle and absurd clamour on the part of the public," that those courts were inferior courts which were established to enable common people to sue for small debts and damages under twenty pounds. Crogate then asks why, if special pleading is a good thing, is it done without in these courts. The Baron responds that it is not brought into these courts because of the expense and delay which the forms of correct pleading would occasion, and because ". . . in these trifling matters the greatest object is to administer substantial justice in the simplest form and at the least expense." Crogate responds: "Well, in my ignorance, I should have thought that would have been the object in great cases as well as small."

The first movement for pleading reform began with Jeremy Bentham in England in 1776 and continued during the nineteenth century. It culminated in the English Supreme Court of Judicature Act of 1873. See 39 Harv L Rev 725. In the United States, due to the efforts of David Dudley Field, the so-called Field Code was adopted in New York in 1848. The Code united courts of law and equity and abolished forms of action. This was the genesis of code pleading in America.

Judge Charles E. Clark, formerly Dean of the Yale Law School, takes the view that you have a recurring round in pleading formality, that procedure becomes formal and rigid; reformers attack it, try to restore it to simplicity. They succeed to a certain extent, but immediately the new system is again reduced to the same formality and it is necessary to start all over again. It is generally held that pleading other than notice pleading must set out a legal right on the part of the plaintiff, a breach of a duty by the defendant, and resulting injury to the plaintiff, and in some jurisdictions, such as Illinois, a further allegation of due care on the part of the plaintiff in tort cases.

Under the common law system of pleading a single issue would be reached, which issue was then submitted to the trier of the fact for determination. In Clark on Code Pleading, it is stated that pleading is not an end in itself, but only a means to an end — the working out of justice through rules of substantive law. Quoting Collins, M.R., in In re Coles (1907), 1 KB 1, 4. The system of pleading at common law became ironbound and the pleadings in many instances became more important than the real issues involved in the case or the right of the litigant to have his claim decided by an impartial tribunal.

The purpose of the New York Code was to get away from the formality of common law pleading. It was thought that this could be done by requiring the pleader, instead of reciting the elaborate fictions which were frequently employed by pleaders under the common law system, to state facts constituting the cause of action, and the Code so provided. Immediately upon the adoption of the Code case after case came before the reviewing courts based upon pleadings alleged to be defective.

Many of the attacks on pleadings are made not for the purpose of clarifying the issues but for the purpose of delay. Roscoe Pound, in Some Principles of Procedural Reform, 4 Illinois Law Review 388, 391 (1910) says: "But there are civil causes throughout the country in which, to use the language of an English judge, the last hair in the tail of procrastination has been pulled out."

The New York Act provided that "Every pleading shall contain a plain and concise statement of the material facts, without unnecessary repetition, on which the party pleading relies, but not the evidence." The Act adopted in Illinois provided that "All pleadings shall contain a plain and concise statement of the pleader's cause of action, counterclaim, defense, or reply." Section 33, Civil Practice Act. Professor Edward W. Hinton stated that the omission of the term "statement of facts" contained in the New York Act was done for a purpose. He says:

"The Committee . . . decided to omit the word `facts' in order to minimize so far as possible the controversy that has arisen in so many code states where pleadings have been constantly attacked as setting out conclusions rather than facts."

The foregoing is cited in Walter Wheeler Cook "Facts" and "Statements of Fact," 4 Univ Chi L Rev 233 (1936). However, there still remained the difficulty of defining what was meant by "cause of action."

In Illinois, in Chicago City Ry. Co. v. Jennings, 157 Ill. 274, 41 N.E. 629 (1895), before the passage of the Civil Practice Act, it was held that an allegation of general negligence in the declaration, to the effect that the defendant, "by its said servants, so carelessly and improperly drove ...


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