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Weber v. Northern Ill. Gas Co.

MARCH 5, 1973.

RALPH WEBER, JR., A MINOR BY HIS FATHER AND NEXT FRIEND, RALPH WEBER, SR., PLAINTIFF-APPELLANT,

v.

NORTHERN ILLINOIS GAS COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT E. HALLETT, Judge, presiding.

MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Ralph Weber, Jr., filed a complaint in two counts seeking to recover for personal injuries sustained as a result of an accident which occurred while he was employed as a construction worker. Count I was founded on common law negligence and Count II on the Structural Work Act. (Ill. Rev. Stat. 1967, ch. 48, sec. 60 et seq.) Count II was dismissed on defendants' motion on December 18, 1968, on the ground it did not state a cause of action under the Act. The order stated:

"* * * and it is considered by the court that, as to Count II of the amendment to the complaint, the plaintiff take nothing by his suit against these defendants, and that the defendants go hence without day and have judgment for their costs and execution thereon; and the court further finds that there is no just reason to delay enforcement or appeal of this order."

On May 2, 1969, the court entered summary judgment on behalf of the defendants on Count I. The quoted language from the dismissal order of December 18, 1968, appeared also in the order of May 2, 1969. On May 29, 1969, the plaintiff filed a motion for rehearing on both orders alleging, in part, that the order of December 18, 1968, was not final and appealable. Pursuant to leave of court, plaintiff filed various affidavits and excerpts from depositions applicable to Count I. On November 18, 1969, the court entered an order concluding: "It is hereby ordered that said motion to vacate [the orders of December 17 (sic), 1968 and May 1 (sic), 1969] be denied; thus rendering said orders final and appealable." The confusion between December 17 and 18, and May 1 and May 2 stems from the fact that "December 17" and "May 1" appear to be the days the orders were prepared, but they were not entered until December 18 and May 2.

The notice of appeal filed December 17, 1969, prayed that the orders of December 17, 1968, May 1, 1969, and November 18, 1969, be reversed. The original brief filed August 24, 1969, by the plaintiff expressly excluded the ruling on Count II from the appeal. Later, pursuant to leave of this court, plaintiff filed a supplemental brief which urged a reversal of the order dismissing Count II. The defendant filed a motion to strike that portion of the appeal. That motion, unsupported by any authority, was denied by this court.

The plaintiff now urges a reversal of all orders dealing with both Counts because Count II does state a cause of action under the Act and summary judgment was improperly granted on Count I since questions of fact existed which could only be resolved by the jury. The defendant contends that the record did not disclose any triable issue of fact on Count I, that Count II did not state a cause of action under the Structural Work Act and that this court lacks jurisdiction to pass on the appeal insofar as it applies to Count II. The plaintiff replies that this court does have jurisdiction and that our order denying the defendant's motion to dismiss that portion of the plaintiff's appeal is res judicata.

• 1-3 Initially, we must reject the argument of the plaintiff that our order denying the motion to dismiss the appeal on Count II is res judicata. The question of whether a court has jurisdiction is always open, and the court may of its own motion dismiss an action where want of jurisdiction appears. Village of Glencoe v. Industrial Com., 354 Ill. 190, 188 N.E. 329.

Supreme Court Rule 303, (Ill. Rev. Stat. 1971, ch. 110A, sec. 303) provides:

"(a) Time. Except as provided in paragraph (b) below, [Forcible Entry and Detainer and Local Improvement and Drainage Cases] the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case, within 30 days after the entry of the order disposing of the motion. * * *."

Since the motion for rehearing filed May 29, 1969, was more than thirty days after the entry of the order of December 18, 1968, the threshold issue is whether the order of December 18, 1968, was a final and appealable one.

Supreme Court Rule 304, (Ill. Rev. Stat. 1971, ch. 110A, sec. 304) provides:

"(a) * * * If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. * * * The time for filing the notice of appeal shall run from the entry of the required finding. * * *."

In Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153, a three-count complaint was filed. Count I alleged a claim for damages pursuant to the grant of a statutory cause of action by the Liquor Control Act. Count II alleged another separate cause of action based on the Act and Count III alleged common law negligence. Counts II and III were dismissed on the ground that the Liquor Control Act provided the only remedy against tavern operators and owners of premises for injuries to persons by an intoxicated person. The court made an express finding that there was no just reason for delaying the appeal. A motion to dismiss the appeal was made on the ground that the complaint did not involve multiple claims but only a single claim stated in various ways. The court denied the motion to dismiss holding that, although arising from the same occurrence or transaction, the bases of recovery in Counts II or III were different from that in Count I. Similarly, in Padulo v. Schneider, 346 Ill. App. 454, 105 N.E.2d 115, the complaint alleged in one count a cause of action under the Dram Shop Act and common law negligence in another. The court held the dismissal of one count was appealable, because it disposed of a distinct cause of action.

In Central Wisconsin Motor Trans. Co. v. Levin, 66 Ill. App.2d 383, 214 N.E.2d 776, a single count complaint sought specific performance and damages for breach of contract. The court struck those portions of the complaint pertaining to specific performance and found there was no just reason for delaying the appeal. The Appellate Court held that the order was final and appealable.

• 4-8 We find the rationale of these cases applicable here. Under Count I of the complaint in this case the plaintiff must prove negligence on the part of the defendants and that he was free from contributory negligence. Under Count II the plaintiff must prove that he was "in and about" a structure, that one of the devices enumerated in the statute was erected, constructed, placed or operated in an unsafe manner and that the defendant was in charge of the work. The defendant does not have available the defense of contributory negligence. The obligation of a contractor to provide a safe place to work has been expressly held to be different from the obligations under the Act. Parizon v. Granite Steel Co., 71 Ill. App.2d 53, 218 N.E.2d 27; Morck v. Nicosia, 91 Ill. App.2d 327, 235 N.E.2d 287.

The plaintiff relies on the following cases: Veach v. Great Atlantic and Pacific Tea Co., 22 Ill. App.2d 179, 159 N.E.2d 833; Davis v. Childers, 33 Ill.2d 297, 211 N.E.2d 364; Martino v. Barra, 37 Ill.2d 588, 229 N.E.2d 545; O'Leary v. Siegel, 120 Ill. App.2d 12, 256 N.E.2d 127.

In Veach, the Appellate Court refused to accept the trial court's finding of finality because both counts of the tort complaint referred to one occurrence, with no difference as to date, time, place or parties but with some differences of wording of the several charges of negligence. In Davis, a verdict was returned in favor of the defendant partnership in a personal injury action. The trial court sustained plaintiff's motion for judgment notwithstanding the verdict and made a finding that there was no reason for delay. The Supreme Court held that the finding did not have any effect because neither multiple parties nor multiple claims were involved. In Martino, the complaint for personal injuries was against several defendants, including Cities Service Oil Co., who had a cross-claim against other defendants for property damage. The trial court granted the plaintiff's motion for judgment n.o.v. against defendants other than Cities Service, granted a motion for a new trial on damages only, made a finding there was no reason for delaying the appeal and entered judgment for Cities Service on its cross-claim. Appeals were taken from both orders. The Supreme Court held:

"We deem that the trial court abused its discretion in finding that there was no just reason to delay appeal of its order. * * * [T]he trial court's judgments n.o.v. * * * were ...


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