Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This case involves an appeal by plaintiff from judgment orders sustaining the motions of the City of Chicago and United States Fidelity and Guaranty Company to strike an amended complaint, and dismissing the amended complaint as to them.
Plaintiff raises the following points: (1) that the motions of the defendants did not comply with section 45 of the Civil Practice Act, and (2) that where a complaint sets forth ultimate facts which point to an imposition through deception upon a legal right possessed by a plaintiff, the complaint states a cause of action.
For a clear understanding of the case, the pertinent allegations of the amended complaint are herein summarized.
Count I alleged that the defendant, City of Chicago, owned, operated and controlled the Chicago O'Hare International Airport, together with the facilities thereon. That Trans World Airlines, Inc., was a public carrier for hire and used and availed itself of the facilities at Chicago O'Hare International Airport. That the plaintiff arrived at the airport on a TWA plane and while using an escalator to obtain her luggage fell, incurring injuries. The plaintiff also alleged that she was at all times in the exercise of ordinary care for her own safety. The amended complaint further alleged that the defendant, City of Chicago, was guilty of acts of negligence or omission which caused the injury to the plaintiff. Other allegations of negligence were asserted against Trans World Airlines, Inc.
Count II of the amended complaint alleged: 1. That on November 17, 1962, the plaintiff was a citizen of the country of Greece and arrived at Chicago O'Hare International Airport to visit relatives in this country. 2. That plaintiff was injured on the premises and notified defendant, Trans World Airlines, Inc. of said injury. 3. That plaintiff did not know that Chicago O'Hare International Airport was owned, operated and controlled by the City of Chicago. 4. That subsequent to said date and on various occasions plaintiff was visited by an investigator or adjuster representing the defendant, United States Fidelity and Guaranty Company, a corporation, and said investigator or adjuster discussed settlement of plaintiff's claim. 5. That said investigator or adjuster, as agent and servant of defendant, City of Chicago, and United States Fidelity and Guaranty Company, acting within the full scope of his employment, at no time informed the plaintiff that Trans World Airlines, Inc. was not the owner of the said airport, or that the defendant, United States Fidelity and Guaranty Company represented and was acting on behalf of the defendant, City of Chicago. 6. That on March 9, 1964, the plaintiff was informed by the defendants, United States Fidelity and Guaranty Company and City of Chicago that her claim was being denied because of her failure to comply with the statutory notice of injury to the City of Chicago within a six-month period. 7. That said notice from said defendants was the first information the plaintiff had received that her claim might be against someone other than Trans World Airlines, Inc. 8. That the actions of the investigator or adjuster of the defendant, United States Fidelity and Guaranty Company, acting within the full force and scope of his employment as agent of the said defendant, and defendant, City of Chicago, were made to deceive and did deceive the plaintiff, as a result of which the plaintiff has been greatly damaged and deprived of whatever cause of action she might have had at law against the City of Chicago as a result of the negligence of the defendant, City of Chicago.
The original complaint was filed on November 12, 1964, and after motions to dismiss were filed by both the City of Chicago and United States Fidelity and Guaranty Company, the plaintiff obtained leave and filed the amended complaint on January 7, 1965. The defendant, City of Chicago, thereafter filed a motion to dismiss the amended complaint, setting forth that there was no compliance with chapter 24, section 1-4-2, of the Illinois Revised Statutes, entitled Notice of Injury, and is thus barred by virtue of section 1-4-3 of chapter 24. The motion also set forth that the summons initiating the action was taken out on November 12, 1964, more than one year following the accrual of the action and is thus barred by chapter 24, section 1-4-1. The motion also stated, as a further reason for the motion to dismiss, that the allegations of the plaintiff's amended complaint do not state a cause of action against this defendant.
The motion of the United States Fidelity and Guaranty Company to strike set forth that the complaint failed to state a cause of action against that defendant; that the complaint alleges merely conclusions of the pleader and not ultimate facts, and that the complaint on its face shows a lack of due care and diligence on the part of the plaintiff to inform herself of the proper parties defendant. This motion was permitted by order of court to stand as a motion to strike Count II of the amended complaint.
The motions of both City of Chicago and United States Fidelity and Guaranty Company to dismiss the amended complaint were sustained and orders dismissing the amended complaint as to both of the defendants were entered.
Trans World Airlines, Inc. filed an answer to the amended complaint and is still a party to this proceeding in the trial court.
The orders dismissing the amended complaint contained appropriate language to the effect that there was no just reason for delay of enforcement and appeal of the orders.
The plaintiff first argues the deficiencies in both motions and points out that under section 45 of the Illinois Practice Act (Ill Rev Stats 1963, c 110, § 45) a motion to strike and dismiss must specifically point out the defects complained of and a motion to dismiss on the ground that the complaint is insufficient in law must point out where the complaint is insufficient. The motion of the City of Chicago specifically pointed out the failure of the plaintiff to notify the City of Chicago within six months from the date of such injury, and other information required by statute, (Ill Rev Stats 1963, c 24, par 1-4-2,) and, likewise, was specific in pointing out that upon the failure to give such notice, as provided, any such civil action commenced against a municipality shall be dismissed and that said party shall be forever barred from suing. (Ill Rev Stats 1963, c 24, par 1-4-3.) Said motion was specific, also, in pointing out that under section 1-4-1 of c 24 (Ill Rev Stats 1963, c 24, par 1-4-1), the action was not initiated within one year after the cause of action accrued.
The motion of the City of Chicago, in stating that the allegations of plaintiff's amended complaint do not state a cause of action against the City of Chicago, did not comply with the provisions of section 45 of the Illinois Practice Act (Ill Rev Stats 1963, c 110, § 45) in that it failed to point out wherein the amended complaint was insufficient as a matter of law. The motion of United States Fidelity and Guaranty Company to dismiss the amended complaint was, likewise, in general terms and failed to point where the amended complaint was ...