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Corn v. Lorain Division

OPINION FILED MARCH 6, 1981.

ROGER L. CORN, PLAINTIFF-APPELLANT,

v.

LORAIN DIVISION, KOEHRING COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Williamson County; the Hon. GEORGE OROS, Judge, presiding.

MR. JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Roger L. Corn claimed to have been injured in an accident with a Koehring crane on September 29, 1977, while working on a construction site for the expansion of the Delta Mine, Amax Coal Company, near Carrier Mills, Illinois. He sued Koehring and Amax Coal Company, Inc., December 28, 1978, well within the two-year statute of limitations. Amax Coal Company, Inc., filed a motion attacking the pleadings, an answer, interrogatories, and answers to interrogatories and a request to produce documents filed by Corn. Two weeks after the statute of limitations had run Amax Coal Company, Inc., moved to dismiss the counts of Corn's complaint directed against it because the wrong defendant had been sued. Corn moved to substitute the correct defendant, Amax, Inc., under section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(4)). Both motions were granted and Corn filed and served an amended complaint, different only in the substitution of Amax, Inc., for Amax Coal Company, Inc. Amax, Inc., moved to dismiss counts I and II of the complaint against it, asserting the running of the statute of limitations and denying that the provisions of section 46(4) of the Civil Practice Act had been satisfied. The trial judge granted the motion to dismiss, with prejudice. The plaintiff appeals from the dismissal.

The record shows that on December 28, 1978, Corn filed his complaint against Amax Coal Company, Inc., a foreign corporation, and Lorain Division, Koehring Company, a foreign corporation. Corn essentially pleaded common law negligence and breach of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60-69) against Amax Coal Company, Inc., and common law negligence and product liability against Lorain Division, Koehring Company. Amax Coal Company, Inc., filed a motion attacking the complaint on February 6, 1979, alleging various pleading defects, but not suggesting that the action should be dismissed because it did not own or control the property as alleged. A hearing was held on March 22, 1979, and the complaint was ordered amended in minor ways, but the defendant's motion to dismiss was overruled. Amax Coal Company, Inc., was ordered to answer which it did on March 29, 1979. The answer denied all of the allegations of the complaint except that the suit was brought pursuant to sections 60-69 of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60-69), and that Amax Coal Company, Inc., was and is doing business in Williamson County.

On April 25, 1979, Corn filed interrogatories pursuant to Supreme Court Rule 213(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 213(c)), to be answered within 28 days, and a request to produce requesting defendant.

"* * * to produce at the office of Lindholm & Williamson 809 Lehman Building, Peoria, Illinois, within thirty (30) days, or at such time and place as may be agreed upon by the attorneys of the parties, pursuant to Rule 214 of the Illinois Supreme Court, the following documents, objects, or tangible things for inspection, copying and reproduction: * * *."

More than three months later, on July 30, 1979, the defendant filed answers to the interrogatories signed by George L. Raymond, Amax Coal Company, Inc., on July 12, 1979, and a response to request to produce signed by William J. Novick, attorney for Amax Coal Company, Inc., on July 27, 1979. The answers to the interrogatories generally responded in the negative to questions such as whether an architect had been hired by Amax Coal Company, Inc., and if so who. The responses to numbers 2, 50, and 51 are as follows:

"2. Did Defendant enter into any written contracts with any persons, firm or corporation for any of the construction work in progress at the place Plaintiff was injured?

ANSWER TO INTERROGATORY NUMBER 2:

No.

50. Do you have any statements from any witness other than yourself, or of any corporation or any one other than an officer, director, managing agent or foreman? If so, give the name and address * * *.

ANSWER TO INTERROGATORY NUMBER 50:

No.

51. List the names and addresses of all other persons who have knowledge of the facts of the complained of occurrence or of the injuries and damages following therefrom.

ANSWER TO INTERROGATORY NUMBER 51:

Defendant has insufficient knowledge ...


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