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Van Dekerkhov v. Herrin

FEBRUARY 11, 1971.

GUSTAVE VAN DEKERKHOV, PLAINTIFF-APPELLANT,

v.

THE CITY OF HERRIN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Williamson County; the Hon. A.R. CAGLE, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiff filed suit under Chapter 48, Section 60-69, Illinois Revised Statutes 1967, commonly known as the Scaffold Act, and alleged that while he was employed as a foreman by John Vander, a general contractor, he was engaged in the demolition and removal of buildings owned by the defendant. Paragraph 2 of his complaint states:

"That on June 26, 1968, at approximately 1:15 o'clock p.m., defendant was the owner of a block of business buildings of various and different types of construction located within East Madison, Fourteenth, East Monroe and an alley between North Park and North 14th Streets; and was in the process of, had charge and control of, the demolition and removal of said buildings."

Defendant filed a motion to dismiss which the trial court sustained. Plaintiff elected to plead no further, and a judgment in bar of his action was rendered against him. Plaintiff appeals.

Defendant contends only that the plaintiff did not set up proper facts to show that defendant had charge and control of the work of demolishing the buildings; that the allegation in paragraph 2 of the complaint that the defendant "had charge and control of the demolition and removal of said buildings" was a conclusion which was not admitted by the motion to dismiss.

• 1, 2 A motion to dismiss admits of well pleaded facts in the complaint. Only ultimate facts need to be alleged in a complaint, and the rule that pleading of evidence is unnecessary should be adhered to. O'Brian v. Matual, 14 Ill. App.2d 173, 189.

In Larson v. Commonwealth Edison Company, 33 Ill.2d 316, 211 N.E.2d 247, the court passed on an instruction attempting to define "having charge of" by saying at 323:

"It is to be gathered from the opinion of the Appellate Court, and the arguments of Edison in this court, that justification for the instruction given in this case may be found in the need to provide jurors with a definition of the statutory words `having charge of.' We do not believe such a need exists. It is well established that the meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury. (Nowak v. Witt, 14 Ill. App.2d 482; 34 I.L.P., Trial, sec. 176.) The term `having charge of' is one of common usage and understanding, and it is our opinion that further attempt at definition can only lead to confusion and error."

• 3 When plaintiff alleged that the defendant was the owner and was in the process of and had charge of and control of the demolition and removal of said buildings, he alleged an ultimate fact that needed no definition. The trial court erred in sustaining defendants' motion to dismiss.

We reverse this case and remand it to the Circuit Court of Williamson County for proceedings not inconsistent with this opinion.

Reversed and remanded.

JONES, J., concurs.

Mr. PRESIDING JUSTICE EBERSPACHER, dissenting:

We are here dealing with a direct attack by proper motion on a complaint seeking recovery under the Scaffold Act. (Ch. 48, par. 60-69, Ill. Rev'd. Stat. 1967.) Section 69 of the Act provides in substance that any owner having charge of the erection, construction or removal of a building shall comply with all the terms of the Act. The Supreme Court in the case of Gannon v. Chicago, Milwaukee, St. Paul & Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785, held that before an owner could be held liable under the Scaffold Act that it must appear that he had charge of the construction operations involving the violation. The mere fact of ownership, the court said, was insufficient to impose liability. That case involved trial and did not concern the sufficiency of pleadings. The Supreme Court again had occasion to pass upon the matter of liability of an owner in Larson v. Commonwealth Edison Company (1965), 33 Ill.2d 316, 211 N.E.2d 247, ...


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