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Fanning v. Lemay

DECEMBER 31, 1966.

RUTH FANNING, PLAINTIFF-APPELLANT,

v.

CLAUDE LEMAY AND ERNEST PIPER, D/B/A SPEED WASH LAUNDRY; U.S. RUBBER COMPANY, INCORPORATED, A CORPORATION; AND MONTGOMERY WARD AND COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Jefferson County; the Hon. CHARLES E. JONES, Judge, presiding. Judgment adverse to plaintiff reversed.

GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Jefferson County, entered in favor of all defendants upon allowance of defendants' motions to dismiss plaintiff's complaint, and the cause of action.

The complaint is in three counts. Count I, as amended, is directed against the defendants, Claude Lemay and Ernest Piper, d/b/a Speed Wash Laundry. Plaintiff alleges that defendants own and operate a laundromat in Mt. Vernon, known as the Speed Wash Laundry, that plaintiff, as a business invitee of defendants, entered the premises for the purpose of using certain coin operated washing machines, that she was in the exercise of due care for her own safety, that it was raining, that the floor of the laundromat was covered with asphalt tile, which defendants knew, or in the exercise of reasonable care should have known, would become slippery when wet, that defendants knew, or in the exercise of reasonable care should have known, that customers coming in to the premises while it was raining would carry water on to the asphalt tile on the soles of their shoes, that defendants owed their customers the duty to exercise reasonable care, that defendants were negligent in failing to furnish a mat, rug, or "other similar safe and suitable means" inside the door for "use by customers to wipe their shoes," upon entering the premises, and were negligent in failing to warn plaintiff and others that the floor was slippery when wet, when "they knew or should have known that the safety of plaintiff was thereby endangered."

Count II is directed against the defendant, U.S. Rubber Company, Incorporated, and charges that the defendant, U.S. Rubber Company, Incorporated, manufactured a certain type of shoe which was sold exclusively by the defendant, Montgomery Ward and Company, Incorporated, the soles of which, when wet, were not safe for use in walking on asphalt tile floors, that persons wearing said shoes, when wet, and in walking upon asphalt tile floors, were in danger of slipping and falling, that defendant used a type of material in making the soles which it knew, or should have known, was not safe for the purpose for which it was used, that defendant failed to warn plaintiff and other purchasers of the dangers of wearing the shoes, that plaintiff purchased a pair of the shoes from the defendant, Montgomery Ward and Company, Incorporated, and while wearing them, entered the premises of the defendants, Claude Lemay and Ernest Piper, that it was raining, and that there was not available in the premises any means of wiping the moisture from the soles of her shoes.

Count III is directed against the defendant, Montgomery Ward and Company, Incorporated, and alleges that plaintiff bought the above described shoes from this defendant, alleges that chapter 26, sections 2-315, and 2-316(2), Ill Rev Stats 1963, were in full force and effect, that plaintiff relied upon the skill or judgment of the defendant, Montgomery Ward and Company, Incorporated, that the shoes were fit for the purpose of walking upon asphalt tile floors, and in wet weather; that said shoes were not fit for that purpose in that when the soles were wet, they became slippery and dangerous, that at the time of the sale, plaintiff was not given any conspicuous written exclusion of the implied warranty of fitness as is required by section 2-316(2) supra, that plaintiff wore the shoes into the premises of the defendants, Claude Lemay and Ernest Piper, and because of the breach of the implied warranty, defendant was caused to fall. In each count it is alleged that plaintiff fell and suffered injuries.

The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. Ch. 110, § 33(3), Ill Rev Stats 1965. Section 4 of the Civil Practice Act provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the rights of the parties. (C 110, § 4, Ill Rev Stats 1965.) Section 31 provides that certain formal requisites heretofore pertaining to pleading are no longer necessary, but states that the section does not affect in any way the substantial averments of fact necessary to state a cause of action, and section 42(2) provides: "No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet."

In a scholarly opinion in the case of Kita v. Young Men's Christian Ass'n of Metropolitan Chicago, 47 Ill. App.2d 409, 198 N.E.2d 174, Mr. Justice McCormick, speaking for the Appellate Court, reviews the common-law system of pleading, the reforms instituted in England commencing in 1776, the development of code pleading in the United States, and many of the decisions of the Illinois courts of review since the adoption of the Civil Practice Act in 1933, and concludes with the admonition that the purpose of the law is to do substantial justice, and if the courts, by their restrictive interpretation of the Civil Practice Act, "place the rights of the plaintiff and defendant in a legal strait jacket," they will defeat the achievement of simplicity of pleading which the Civil Practice Act was designed to accomplish.

The purpose of a complaint, and the test of its sufficiency, is that it inform the defendant of a valid claim under a general class of cases. Irving v. Rodriquez, 27 Ill. App.2d 75, 169 N.E.2d 145. In Hall v. Gruesen, 22 Ill. App.2d 465, 161 N.E.2d 345, at page 468, the Appellate Court, in considering the sufficiency of a complaint, said: "The averments are not in that precise language at one time required, but under the Practice Act, pleadings are liberally construed with a view to doing substantial justice between the parties. (Ill Rev St 1957, Ch 110, Par 33.) This is not an idle generality to which only lip service need be paid. It is the pronouncement of a burial service for the formalities of Chitty and the rigors of common-law pleading. . . . The essential test of a complaint is that it inform the defendant of a valid claim."

[2-4] In a complaint seeking to allege a cause of action based on negligence, it is sufficient if the facts alleged are such as to raise a duty, show a breach of the duty, and a resulting injury. The allegations need not be framed in any specific manner, negligence may be alleged generally, Church v. Adler, 350 Ill. App. 471, 113 N.E.2d 327, and causes of action may be pleaded alternatively, hypothetically and inconsistently. (Section 43 (2) Civil Practice Act.) If a party feels that the pleading does not adequately advise him of the claim against which he must defend, section 45(1) of the Civil Practice Act provides for a motion to make more definite and certain, and a bill of particulars may be sought in accordance with section 37. The provisions for discovery in the Civil Practice Act and the Supreme Court Rules, provide the method for obtaining information pertinent to the litigation. With these means of ascertaining the nature of the claim, and the evidence in support of it, an order of dismissal of a cause of action on the pleadings should be entered only if no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, that no cause of action can be stated. Olin Mathieson Chemical Corp. v. J.J. Wuellner & Sons, Inc., 72 Ill. App.2d 488, 218 N.E.2d 823, Davis v. Hoeffken Bros., Inc., 60 Ill. App.2d 139, 218 N.E.2d 370.

Plaintiff, relying primarily upon Sommese v. Maling Bros. Inc., 65 Ill. App.2d 223, 213 N.E.2d 153, argues that Count I of the complaint states a cause of action. Defendants, Claude Lemay and Ernest Piper, d/b/a Speed Wash Laundry, contend that plaintiff's complaint "alleges an occurrence resulting solely from natural causes; namely, rain water on sole of plaintiff's shoes, for which defendants cannot be held responsible, and the Court should decide the question as a matter of law."

In support of their position, defendants, Claude Lemay and Ernest Piper cite Clark v. Carson Pirie Scott & Co., 340 Ill. App. 260, 91 N.E.2d 452; Hartman v. Goldblatt Brothers, Inc., 19 Ill. App.2d 563, 154 N.E.2d 872; Murray v. Bedell Co., 256 Ill. App. 247; Brunet v. S.S. Kresge Co., 115 F.2d 713; Sears, Roebuck & Co. v. Johnson, 91 F.2d 332; and S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174. We have examined each of these opinions, and point out that unlike this case, those cases were tried, and the reviewing court was required to determine whether the evidence presented a case for submission to the jury.

Here, our review is more limited; we need only determine whether under the pleadings, plaintiff could prove a submissible case.

On November 14, 1966, in Docket No. 39776, the Supreme Court, while reversing the judgment in Sommese for other reasons, said: "The defendant contends that as a matter of law the plaintiff is not entitled to recover because the plaintiff's evidence failed to establish that the construction or maintenance of the defendant's premises was negligently accomplished; that defendant had any knowledge of the alleged hazardous nature of its premises; and proximate cause. Defendant further insists the evidence shows that plaintiff's actions were the proximate cause of her injury, or that her injuries were the result of an accident for which nobody is to blame.

"As to these matters the appellate court held that the plaintiff was not barred from recovery as a matter of law and that the trial court was correct in refusing defendant's motions for a directed verdict, and for judgment notwithstanding the verdict. We do not consider it necessary to discuss the cases presented on this point as they are analyzed in the appellate court opinion. We believe that the appellate court was correct in its decision on this point and that, considering the evidence most favorable to the plaintiff, it was a jury question as to whether the defendant knew or should have known that the material used in the composition of the ...


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