Baillon v. S. S. Kresge Co.

• Decision Date: 11 January 1972
• Docket Number: Gen. No. 11505,K-M
• Citation: 4 Ill.App.3d 82,277 N.E.2d 719
• Parties: Maria BAILLON, Plaintiff, v. S. S. KRESGE COMPANY d/b/aart, Melvin Simon and Scott Lad Foods Corporation, Defendants. S. S. KRESGE COMPANY d/b/aart, a Corporation, and Melvin Simon, Third-Party Plaintiffs-Appellants, v. RUDY'S MARKET, INC., a Corporation, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 719

277 N.E.2d 719

4 Ill.App.3d 82

Maria BAILLON, Plaintiff, v. S. S. KRESGE COMPANY d/b/a K-Mart, Melvin Simon and Scott

Lad Foods Corporation, Defendants.

S. S. KRESGE COMPANY d/b/a K-Mart, a Corporation, and Melvin

Simon, Third-Party Plaintiffs-Appellants, v. RUDY'S MARKET, INC., a Corporation, Third-Party Defendant-Appellee.

Gen. No. 11505.

Appellate Court of Illinois, Fourth District.

Jan. 11, 1972.

Rehearing Denied Feb. 7, 1972.

T. G. Knappenberger, Jr., Champaign, for appellants.

Hatch, Corazza, Baker & Jensen, Champaign, Harold A. Baker and Timothy O. Madigan, Champaign, of counsel, for appellee.

CRAVEN, Justice.

Maria Baillon filed a complaint in the circuit court of Champaign County against S. S. Kresge Company and a Melvin Simon alleging injuries on January 3, 1969 at a time when the plaintiff was on premises as a business invitee and alleged in her complaint that the defendants were negligent in four specified respects, all of which related to the failure to remove or the negligent removal or negligent piling of snow and ice in the vicinity of the northwest corner of a department store located at the K-Mart Plaza in the City of Champaign.

The defendants named in the original action filed a third party complaint against Rudy's Markets, Inc., a corporation, alleging the filing of the original complaint, which was incorporated in the third party complaint by reference, and further alleging that under the terms of a certain document described as a license agreement between Kresge, as licensor, and the third party defendant, Rudy's, as licensee, Rudy's was obliged to indemnify and hold harmless the licensor for any claims involving use or occupancy of the licensed area or the sale or the offering for sale of the licensee's products or merchandise, and alleged the contractual obligation to procure liability insurance effecting such indemnification. Likewise, the third party complaint alleged the execution of a lease between the third party, Simon, and Rudy's by the terms of which the lessee was to protect the lessor by public liability insurance for any injuries or damage that may occur on or about the leased premises. The third party complaint describes the lease as relating to a certain building, etc.

The circuit court of Champaign County granted the motion of the third party defendant, Rudy's, for judgment on the pleading. This appeal is from that action.

We have taken with the case a motion by the appellants to strike certain portions of the record on appeal. This motion asserts that the record on appeal contains matters unrelated to the third party complaint and motion and that such may not properly be considered upon a review of the motion for judgment on the pleadings. We deem the motion to be well taken. Upon consideration of a motion for judgment on the pleadings the court is to ascertain whether there is an issue of material fact presented by the pleadings and if there is no such issue, the question is which party is entitled to judgment. Such motion raises the issue of the sufficiency of the pleadings and does not invite a review of other and ancillary material that may in fact be in the file or in the record in some unrelated manner. (Swidler v. Litvin, 107 Ill.App.2d 227, 246 N.E.2d 895.) The motion to strike the designated portion of the record on appeal is...