Appeal from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding. Affirmed in part, reversed
in part, and remanded.
Plaintiff appeals from an order of the Circuit Court granting defendants' motions to dismiss his Second Amended Complaint.
The case is presented to us upon the pleadings. It appears from plaintiff's Second Amended Complaint that defendant J.I. Case Company, a corporation, is the manufacturer, (and is hereinafter referred to as manufacturer), defendant Jones Farm Supply, a corporation, is the seller (and is hereinafter referred to as dealer), and plaintiff is the purchaser of a crawler loader tractor. Plaintiff's Second Amended Complaint contains five counts, each directed against both defendants and each based upon essentially the same factual allegations. In each count of the complaint the plaintiff uses language that would pertain to breach of express warranty, breach of implied warranty, manufacturer's strict liability and negligent manufacture. One count also alludes to the remedy of restitution. The prayers for relief in the several counts seek both direct and consequential damages. Each of the defendants filed its Motion to Dismiss the Second Amended Complaint. After argument the trial court entered a final order of dismissal of plaintiff's Second Amended Complaint, filing a Memorandum of Opinion which recited that plaintiff had elected to stand on his pleadings requesting involuntary dismissal with prejudice so an appeal would immediately lie. The Memorandum recited:
"The Second Amended Complaint attempts to recover on a number of legal theories, some inconsistent, some barred by admitted written warranty, some by the provisions of the Uniform Code, and some by operation of law. All are intermingled in numerous counts, none of which conform to the requirements of Section 33, Subsection 2 of the Civil Practice Act. Rather than examine in detail all of the defects of the complaint, the Court will rather indicate substantial merit in most of the points raised in the two Motions to Dismiss.
"The Complaint is therefore subject to dismissal for numerous reasons including duplicity."
Defendants' Motions to Dismiss for failure of the complaint to state a cause of action admit all well-pleaded facts and while the Second Amended Complaint is to be construed strictly against plaintiff, it is entitled to all reasonable inferences which can be drawn from the well-pleaded facts. However, defendants' motions do not admit conclusions of law or conclusions of facts unsupported by allegations of specific facts upon which such conclusions rest. Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill. App.2d 362, 219 N.E.2d 726. Plaintiff has suffered the ultimate sanction for bad pleading final dismissal of his complaint. The basis of the trial court's order of dismissal is that plaintiff's Second Amended Complaint is legally insufficient in both form and substance.
The complaint was found insufficient in form because of its failure to comply with section 33(2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 33 (2)) which provides that each separate claim or cause of action upon which a separate recovery might be had shall be stated in a separate count . . . and each count . . . shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate allegation. It must be conceded that when tested against this requirement of the Civil Practice Act, plaintiff's complaint leaves something to be desired, because it asserts elements of each of several theories of liability in its separate counts. However, before there may be a final dismissal of plaintiff's complaint, consideration must be given to other sections of the Civil Practice Act. 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 substantive rights of the parties, that the rule that statutes in derogation of the common law must be strictly construed does not apply to the Civil Practice Act or rules made pursuant thereto. Section 33(3) provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. Section 42(2) provides that 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. The trend of the cases interpreting the apparent conflict arising between section 33(2) on the one hand with sections 4, 33(3) and 42(2) evidences the intention of courts to follow the requirements for liberal construction and uphold complaints which contain sufficient allegations to inform the defendant of a valid claim under a general class of cases to the end that controversies may be decided on their merits and not because of the adherence to a rigid form of pleading required by a strict interpretation of the Civil Practice Act. In Consolidated Const. Co. v. Great Lakes Plumbing 90 Ill. App.2d 196, 234 N.E.2d 378, the court said:
"Recent decisions such as Kita v. Young Men's Christian Ass'n of Metropolitan Chicago, 47 Ill. App.2d 409, 198 N.E.2d 174 (1964), and Miller v. Veterans of Foreign Wars of United States, 56 Ill. App.2d 343, 206 N.E.2d 316 (1965), have stressed that `pleadings shall be liberally construed with a view to doing substantial justice between the parties.' Section 33(3).
"In Kita, the court said (p 425):
`The intent of the Civil Practice Act was to get away from the formality and rigidity of the common-law pleading. In Crosby v. Weil, 382 Ill. 538, 548, 48 N.E.2d 386, 391, the court states that "It is only necessary that the allegations state a cause of action." The court quotes section 42 of the Civil Practice Act and says further:
`". . . Under the Civil Practice Act, pleadings are to be liberally construed with the view toward doing substantial justice between the parties and no pleading is to be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim. (Frasier v. Finlay, 375 Ill. 78.) With the adoption of the Civil Practice Act there has been a definite attempt to abolish the so-called technicalities of common-law pleading. . . ."
`. . . If the courts, by their restrictive interpretation of that Act, again place the rights of the plaintiff and defendant in a legal straitjacket, they are pursuing the path pointed out by Judge Clark. The purpose of the law is to do substantial justice and the courts must exercise restraint in construing a statute which seeks to reach that end.'"
In Fitzgerald v. Van Buskirk, 96 Ill. App.2d 432, 239 N.E.2d 330, the court in construing the above sections of the Civil Practice Act stated:
"These sections of the Civil Practice Act are designed and intended to permit controversies to be determined according to substantial justice between the parties, and not according to the technicalities or niceties of pleading. Under the Act, the test of the sufficiency of the complaint is whether it informs the defendant of a valid claim under a general class of cases." (Citations.)
In the case of Church v. Adler, 350 Ill. App. 471, 113 N.E.2d 327, it is held:
"The Civil Practice Act does not authorize so-called notice pleading as plaintiff contends, nor does it require strict pleading as is urged by defendant. A pleading must contain allegations of fact sufficient to state a cause of action. Burr v. State Bank of St. Charles, 344 Ill. App. 332; Stenwall v. Bergstrom, 398 Ill. 377. Verbosity and looseness of form are to be discouraged and in some cases may render the pleading fatally defective. Whether a cause of action is stated is to be judged with the admonitions of liberal construction and reasonable information in mind and the whole complaint must be considered, not merely disconnected parts. Legal conclusions are to be disregarded. Stenwall v. Bergstrom, supra; Heuer v. Davis, 336 Ill. App. 224."
Turning to the Second Amended Complaint, we find that the first twelve paragraphs of Count I allege that both manufacturer and dealer are foreign corporations authorized to do business in Illinois; that manufacturer delivered the tractor to dealer for sale to the general public and it was purchased by plaintiff on March 3, 1966, for an installment price of $14,896.75, and that installment payments are current. Further, that plaintiff is an experienced operator and at all times operated the tractor in a careful and prudent manner so as to protect it and that plaintiff was engaged in a bulldozing business as a general contractor for hire at $12 per hour, which business included performancy of various types of work all of which was known to the defendants. At the time tractor was purchased, plaintiff had many jobs contracted and others promised which would keep him busy with the tractor, which was known by the defendants. Plaintiff had purchased several tractors similar to the one involved from the defendants and had never experienced any serious difficulty with any of them and he completely relied upon the skill and ability of the defendants to produce and service a good satisfactory tractor of the type purchased. The tractor purchased was a defective tractor unable to do the customary work performed by plaintiff which defects were (a) radiator was defective and whenever temperature was over 75 degrees Fahrenheit the tractor would overheat so that it was dangerous to operate and (b) hydraulic system for raising and lowering the bucket was defective and would not hold the bucket up, so that it was dangerous to operate the tractor. These same twelve paragraphs were adopted and alleged in the four succeeding counts of the complaint. After the first twelve paragraphs, Count I continued by alleging that defendants through the use of reasonable care would have discovered the defects prior to the sale, but they failed to exercise reasonable care in the manufacturing of the tractor. Plaintiff called the defects to the attention of defendants on April 19, 1966, but defendants did not correct the defects until July 17, 1967, causing plaintiff to loose 810 work hours while the tractor was in defendant's shop, for which he would have received $12 per hour, for a loss of $9,720, and plaintiff also suffered the loss of many jobs and a loss of reputation because of his inability to perform jobs which he had contracted to do, all because of the defective tractor. Count I prays damages from the defendants in the sum of $9,995 and costs.
Count I of plaintiff's complaint contains incomplete elements of causes of action in implied warranty, strict liability for defective manufacturing and negligence in manufacturing. None of the theories of liability are stated completely. It is not a well-pleaded count and even with the application of rules requiring liberal construction of pleadings, it cannot fairly be said that defendants are informed of a valid claim ...