APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:
The sole issue presented by plaintiffs in this appeal is whether the trial court properly dismissed their product liability action against Gerbing Manufacturing Corporation (Gerbing).
From the relevant facts, it appears that Peter Bejda was injured at his place of employment by metal fragments as the result of the disintegration of the wheel of a grinding machine he was operating. He and his wife brought an action sounding in strict product liability against four defendants three of whom were the designer, manufacturer, and seller of the grinding wheel and the fourth was Gerbing, the designer and manufacturer of the machine drive system. He sought damages for his injuries and his wife for the loss of his services.
The pertinent facts, chronologically, are that on December 12, 1974, a fourth amended complaint was filed by plaintiffs in which it was alleged that the drive system designed by Gerbing was not reasonably safe in that the speed of the wheel was of an imprecise nature and unknown to the operator; that the speed was incapable of reasonably precise control; that the speed was not subject to adequate determination in day-to-day operations; and that the speed tended to increase upward from accepted limits. Gerbing's motion to strike on the grounds that the complaint failed to state a cause of action was denied. On February 10, 1976, Gerbing filed a demand for a bill of particulars and on June 9 it moved to dismiss because of, among other things, plaintiffs' failure to file the requested bill of particulars. This motion had not been acted upon when on June 29 plaintiffs filed such a bill, which contained most of the information asked by Gerbing. An exception, however, was a request that plaintiffs "[i]temize each defect in the `drive system or installation' which permitted * * * the grinding wheel to run at a rate in excess of tolerable limits and to disintegrate." To this request, plaintiffs replied, "The exact nature of said defects or deficiency is unknown at this time * * *." Gerbing's motion to strike the entire bill was granted on July 26, 1976, and in its order the court gave plaintiffs 56 days within which to file an amended bill. They had not filed such an amended bill when, on January 31, 1977, Gerbing moved to dismiss the complaint for failure of plaintiffs to comply with its July 26, 1976, order. The trial court, however, granted plaintiffs an additional 14 days and, upon their failure to comply, the complaint was dismissed on February 16, 1977, as to Gerbing.
Subsequently, on March 3, 1977, the dismissal was vacated and plaintiffs were granted 84 additional days to file an amended bill. When they still had not complied on September 26, 1977, Gerbing again moved to dismiss on the basis of their failure to file as ordered. The trial court, in response, granted what it stated to be a "final" extension of 14 days, and the motion to dismiss was continued to October 12, 1977. It appears that plaintiffs ultimately delivered, on October 11, 1977, what they termed an "Amended Response to Gerbing's Bill of Particulars," which merely adopted and realleged the bill of particulars they had filed in June 1976. The trial court, finding that the amended response did not "comply with the Court's earlier orders requiring the plaintiff to file an amended Bill of Particulars" entered an order October 14, 1977, granting Gerbing's motion of September 26, 1977, to dismiss. This appeal is from that order.
In our consideration of plaintiffs' contention that the trial court improperly dismissed their action against Gerbing, we initially note that plaintiffs were apparently under the impression that the dismissal resulted because a cause of action was not stated in their complaint, and they argue extensively in their briefs here that the allegations were sufficient in that regard. However, the record is devoid of any indication that this was the basis for dismissal and, in fact, an earlier motion by Gerbing to strike the fourth amended complaint for failure to state a cause of action was denied. Accordingly, we do not view the adequacy of the pleadings to be an issue in this appeal.
In resolving the question as to whether the dismissal was otherwise supported by the record, we must first consider whether a trial court possesses the authority to dismiss a complaint under circumstances existing here. The order appealed from sets forth no specific basis for the dismissal, stating only "that the motion to dismiss of Gerbing Manufacturing Corp. filed Sept. 26, 1977, be and is hereby granted." Gerbing, however, took the position in its brief and oral argument here that the dismissal was proper as a sanction under Supreme Court Rule 219, which in relevant part provides:
"Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial Conferences
(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
(v) that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his suit be dismissed with or without prejudice; * * *." (Ill. Rev. Stat. 1977, ch. 110A, par. 219.)
It is clear that this rule provides only for dismissal where there is a failure to comply with any provision of Rules 201 through 218 (Ill. Rev. Stat. 1977, ch. 110A, pars. 201-218) or any order entered under these rules. In the instant case, however, the dismissal was entered because of irregularities in plaintiffs' submission of a bill of particulars which is not a discovery device and is neither governed by nor mentioned in Rules 201 through 218. Indeed, as stated above, the record discloses and on oral argument here Gerbing agreed that plaintiffs had complied, albeit belatedly, with all requests for and orders concerning discovery under these rules at the time the dismissal order was entered. Accordingly, we find no merit in the contention of Gerbing that Rule 219 empowered the trial court to dismiss plaintiffs' action against Gerbing under the circumstances here.
1 Neither do we find such authority in section 37 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 37), the only statutory provision relating to bills of particulars ...