Appeal from the Circuit Court of Cook County; the Hon. HUGO M.
FRIEND, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal taken by the plaintiff, Thomas Garrison, from the entry of a final judgment by the Circuit Court of Cook County on December 7, 1965, after hearing on motions, which judgment dismissed Count III of plaintiff's complaint, in an action for personal injuries, as it pertained to the defendants-appellees, Community Consolidated School District No. 65 and Board of Education, Community Consolidated School District No. 65 (both hereinafter sometimes referred to as the instant defendants).
Plaintiff, a then twenty-year-old drama student at Northwestern University's Evanston campus, commenced this action seeking to recover damages from the instant defendants (as well as seven other defendants not parties to this appeal) for certain alleged personal injuries sustained by him on November 22, 1958, as a result of the ignition and explosion of a "prop cannon" as he participated in a dramatic production at the Haven Community Consolidated School in Evanston. His complaint therein alleged that there existed a contractual agreement between Northwestern University and the instant defendants which provided for and controlled the use of the drama facilities at the aforementioned situs of the injury.
As concerns Count III of the complaint, plaintiff prayed for judgment against the instant defendants and others, jointly and severally, in the sum of $474,000 together with interest and costs.
The instant defendants were named as parties defendant in Count III of the complaint only, and this appeal has been taken by plaintiff solely in respect to the propriety of the trial court's action in dismissing said Count III as against these two defendants.
In response to the complaint at bar, the instant defendants originally brought a motion to dismiss pursuant to section 48(1)(c) of the Civil Practice Act claiming there was another action pending between the same parties for the same cause. This motion was filed on August 4, 1960, 23 days after the filing of the instant complaint, at which time there existed, in fact, a prior cause pending in the Circuit Court which had, as yet, not been reduced to judgment. Upon a subsequent hearing, further proceedings on the motion were continued generally by the trial judge. Thereafter, on May 14, 1965, the instant defendants renewed their objection by filing a motion to dismiss together with supporting affidavit pursuant to section 48(1)(d) of the Practice Act (action barred by a prior adjudication) after the prior cause had been determined in their favor, affirmed by the Appellate Court, and Leave To Appeal as well as Petition for Stay of Mandate were denied by our Supreme Court. Such motion had, in addition, requested that plaintiff's affidavit in opposition to their motion to dismiss be stricken accordingly.
The court below, relative to this latter motion, found (1) that plaintiff's action against the instant defendants was barred by the prior adjudication in Garrison v. Community Consol. School Dist. No. 65, Circuit Court 59C 16254, affirmed, 34 Ill. App.2d 322, 181 N.E.2d 360 (1962), Leave To Appeal denied (hereinafter referred to as Case #1), and (2) that the affidavit in opposition to the motion to dismiss failed to raise any relevant issues of fact. The court entered its judgment accordingly on December 7, 1965. The complaint in the case at bar (hereinafter referred to as Case #2) had been filed in the interim on July 12, 1960. *fn1
Plaintiff assigns alternative theories to this court to support his contention that the court below erred in dismissing Count III of the complaint as to the instant defendants. The judgment of December 7, 1965, from which he has taken this appeal, however, was predicated solely upon the issue of res judicata and hence is the only issue properly before this court for determination. Keeran v. The Wahl Co., 320 Ill. App. 457, 51 N.E.2d 598 (1943).
Relative to the single issue of res judicata, it is plaintiff's theory of the case (1) that defendants' motion to dismiss was untimely; (2) that the order of dismissal in Case #1, which is relied upon as the bar of a prior judgment, was a dismissal without prejudice, hence by appealing that adverse judgment plaintiff did not make an election to stand on his first complaint; (3) that the doctrine of res judicata has no application where, as here, the prior judgment pleaded in bar was not an adjudication on the merits thereof; and (4) that, in any event, Count III of each of the two respective complaints do not assert the same cause of action against the instant defendants.
It is the instant defendants' theory of the case (1) that their motion to dismiss was timely under the circumstances; (2) that plaintiff, by appealing in Case #1, made an election to stand or fall on his first complaint; (3) that the prior adjudication was a final and binding determination on the merits of the cause thereby operating in bar to this subsequent action; and (4) that the respective Counts III of the two complaints are based upon the same cause of action against the instant defendants.
Plaintiff, in his briefs and argument, has alluded to numerous events which he has shown to have intervened from the date on which the injury was sustained and which he maintains preclude the interposition of defendants' plea of res judicata. A brief chronology of those events so offered appears as follows:
(1) November 22, 1958: plaintiff's injury sustained.
(2) May 22, 1959: the Illinois Supreme Court in Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, abolished both retroactively and prospectively the doctrine of sovereign immunity of public school districts from tort liability.
(3) July 22, 1959: the School Tort Liability Act became law in Illinois (Ill Rev Stat (1959) c 122, par 821 et seq.) which enactment adopted the decision in the Molitor case but limited public school districts' liability to $10,000 in damages "if there is liability imposed by any court."
(4) November 12, 1959: plaintiff's complaint in Case #1 filed based upon the previously described tort.
(5) December 16, 1959: the Illinois Supreme Court on rehearing in Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959), reiterated its former abolition of sovereign immunity of public school districts, but thereafter modified its previous opinion stating that such abolition was to operate prospectively ...