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Van Dekerkhov v. City of Herrin





APPEAL from the Appellate Court, Fifth District, heard in that court on appeal from the Circuit Court of Williamson County; the Hon. A.R. CAGLE, Judge, presiding.


The plaintiff, Gustave Van Dekerkhov, brought this action under the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, pars. 60-69) against the defendant, the City of Herrin. The circuit court of Williamson County granted the defendant's motion to dismiss the complaint for failure to state a cause of action, and also granted the plaintiff leave to file an amended complaint within 60 days. The plaintiff, however, elected to stand on his complaint, and judgment was entered for the defendant. The Appellate Court, Fifth District, reversed and remanded, with one judge dissenting (130 Ill. App.2d 952), and we granted leave to appeal.

The complaint alleged that the defendant was the owner of a block of business buildings "and was in the process of, had charge and control of the demolition of said buildings." It also alleged that the plaintiff "was employed as a foreman and laborer by John Vander, a general contractor, engaged in the demolition and removal of said buildings;" that there were no scaffolds erected by the defendant as required by the statute, and that as a result of the defendant's wilful violation of the statute the plaintiff was injured.

The narrow issue is the sufficiency of the allegation that the defendant "had charge of" the work. That allegation is in the language of the statute, which imposes liability upon "[a]ny owner, contractor, sub-contractor or foreman or other person having charge of the * * * removal * * * of any building * * *" who wilfully fails to comply with its provisions. Apart from the allegation that the defendant owned the buildings being demolished, the complaint states no facts from which it may be concluded that the defendant "had charge of" the demolition. Under the construction of the Act announced in Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431, the fact of ownership, standing alone, would have been sufficient, in most cases, to sustain liability. But that construction was overruled in Gannon v. Chicago, Milwaukee, St. Paul and Pacific Ry. Co. (1961), 22 Ill.2d 305, which held that unless an owner "has charge of" the work, he is not liable under the Act.

There are cases which discuss the sufficiency of the unsupported assertion "in charge of" in connection with a motion for summary judgment (Kaminski v. Missionary Sisters of the Sacred Heart (1965), 62 Ill. App.2d 216), and in an instruction to the jury (Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316), but so far as we are aware this is the first case involving the sufficiency of such a naked allegation in a complaint, when challenged by a motion to dismiss.

A complaint which sought to assert common-law tort liability for negligence, but alleged only that the defendant "negligently" performed the act in question, has been held to be subject to dismissal. (See Richardson v. Eichhorn (1958), 18 Ill. App.2d 273.) As has been pointed out, the line between "ultimate" facts and "conclusions of law" is not easily drawn. (Herman v. Prudence Mutual Casualty Co. (1969), 41 Ill.2d 468, 475.) The same allegation may in one context be deemed to be one of ultimate fact, while in another, "* * * where from a pragmatic viewpoint some of these words do not give sufficient information to an opponent of the character of evidence to be introduced or of the issues to be tried, they are held to be legal conclusions. What is law, what are facts, and what is evidence, for pleading purposes, can be determined only by a careful consideration of the practical task of administering a particular litigation." McCaskill, Illinois Civil Practice Act Anno., p. 70 (1933).

The complaint in this case contains two allegations which, if they are not contradictory, certainly do not appear upon their face to be consistent. It is alleged: (1) that the plaintiff was employed as a "foreman and laborer" by the general contractor who was engaged in demolishing the buildings, and (2) that the defendant had charge of and was in the process of demolishing the same buildings. The situation described in the complaint is at best ambiguous, and the plaintiff, although afforded an opportunity to remove the ambiguity, refused to do so.

If there were circumstances, either resulting from the terms of the contract between the owner and the general contractor whom the owner had employed to demolish the buildings, or from the conduct of the parties under that contract, which indicated that the owner had retained control, they should have been stated in an amended complaint. Numerous cases have described the kind of conduct or contractual terms which indicate that an owner has retained "charge." (See, e.g. Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316; Kobus v. Formfit Co. (1966), 35 Ill.2d 533.) When the plaintiff, who was one of those upon whom the statutory duty was imposed, refused to take advantage of the opportunity afforded him to amend his complaint to show upon what he based his claim that the owner "had charge of" the work, the trial court was warranted in dismissing his complaint.

The judgment of the appellate court is therefore reversed and the judgment of the circuit court of Williamson County is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

MR. JUSTICE DAVIS, dissenting:

As stated by the majority, the issue is the legal sufficiency of the allegation that the defendant "had charge of" the work. If these words constitute a statement of ultimate fact, they are legally sufficient; if they are conclusions of law, they are then legally insufficient.

We have observed that there are instances in which the line between statements of "evidentiary facts," "ultimate facts," and "conclusions of law or fact," is not easily drawn (Herman v. Prudence Mutual Casualty Co., 41 Ill.2d 468, 475), and we have long recognized that the plaintiff should plead "ultimate," as opposed to "evidentiary," facts in his complaint. (Levinson v. Home Bank and Trust Co., 337 Ill. 241, 244.) This distinction existed under common-law pleadings, and has been maintained under the interpretation of the Civil Practice Act. (See: Zimmerman v. Willard, 114 Ill. 364, 370; O'Brien v. Matual, 14 Ill. App.2d 173, 188, 189; Ill. Rev. Stat. 1969, ch. 110, par. 33.) If a complaint transgresses the ill-defined demarcation between an "ultimate fact" and a "conclusion of law" and is ...

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