Church v. Adler

• Decision Date: 19 June 1953
• Docket Number: Gen. No. 9869
• Citation: 113 N.E.2d 327,350 Ill.App. 471
• Parties: CHURCH v. ADLER.
• Court: United States Appellate Court of Illinois

Page 327

113 N.E.2d 327

350 Ill.App. 471

CHURCH v. ADLER.

Gen. No. 9869.

Appellate Court of Illinois, Third District.

June 19, 1953.

Louis L. Mason, Decatur, for appellant.

Miller, Leach & Armstrong, Decatur, for appellee.

REYNOLDS, Justice.

This is an appeal from an order dismissing plaintiff's suit following the sustaining of defendant's motion under section 45 of the Civil Practice Act, Ill.Rev.St.1951, Ch. 110, § 169, to dismiss plaintiff's second amended complaint and plaintiff's election to stand on her amended pleading and declining to plead further. Plaintiff's pleading consists of three counts and alleges, in various forms, malpractice on the part of defendant, a physician and surgeon allegedly employed by plaintiff to treat her illness. The sole question presented is the sufficiency of plaintiff's pleading to state a cause of action within the requirements of the Civil Practice Act. The pleading is loosely drafted and in some respects is defective in form and substance and leaves much to be desired in the way of draftsmanship. While we do not approve the form or draftsmanship nor countenance loose pleading, we believe the complaint spells out a cause of action on the facts alleged, whether the tests applied be those obtaining before or after the enactment of the Civil Practice Act.

It is alleged in Count I that the defendant was a physician and surgeon employed by plaintiff to treat her for diseased ovaries and that defendant treated her for that malady for about ninety days. It is alleged that defendant, 'not regarding his duties as such physician and surgeon', was guilty of one or more malfeasances and misfeasances:

'(a) He so unskillfully and negligently conducted himself that by and through his want of skill and care the said sickness and malady of the plaintiff became greatly increased and aggravated and the plaintiff underwent great and unnecessary anguish and distress.

'(b) In that he, the said defendant, negligently failed and omitted to ascertain and diagnose plaintiff's condition.

'(c) Negligently failed to perform an operation on the plaintiff's ovaries, as it was the defendant's duty to do so.

'(d) Negligently failed to treat said plaintiff after operating on her for said diseased ovaries so as to cause or permit said operation of said ovaries to heal.

'(e) Negligently failed and omitted to use the usual and customary skill which it was his duty to so use as a recognized and licensed physician and surgeon in the treatment of plaintiff's said condition.

'(f) Negligently and carelessly failed to prescribe or give any medicine to the plaintiff at the early stage of her illness and malady.

'(g) Negligently and carelessly and improperly removed her appendix, without her permission, when such removal was not necessary for her life and safety.

'(h) Negligently and carelessly and improperly neglected to care for and treat the plaintiff after the operation on September 17th to and including date of January 30, 1949.

'(i) Negligently and carelessly misinformed the plaintiff as to the result of the operation performed by the defendant on September 17, 1948, wherein he told her that she was then curred of her malady and condition above described, when the said defendant knew the said statements were untrue.'

It is alleged in general terms that plaintiff exercised due care and caution for her safety and welfare. It is alleged that by reason and as a result of the alleged malfeasances and misfeasances listed seriatim in the complaint, plaintiff became sick, sore, lame and disordered and will remain so for the rest of her life; was compelled to pay out large sums of money for further medical care and treatment; became 'unable to become successfully pregnant and give birth to children'; suffered great pain 'and was forced to undergo two additional operations'; and was prevented from performing her normal household duties. Plaintiff's damages are laid at $22,000.

It is alleged in Count II, in somewhat more detail, that plaintiff consulted defendant who, after examining her, informed her that her ovaries were diseased and would have to be removed and that his charges would be $200, which plaintiff subsequently paid to defendant. It is further alleged that plaintiff submitted to surgery by the defendant and that the defendant informed plaintiff that he had removed her diseased ovaries and that she would recover her health, although she could bear no more children; that plaintiff continued to suffer from the same illness subsequent to the operation and thereafter defendant refused plaintiff's demand to treat her further for her disorders, for which he had been paid and which he had stated he had remedied; and that by reason of the alleged events plaintiff was compelled to consult another surgeon who diagnosed her illness as diseased ovaries and performed an operation to remove the ovaries, after which plaintiff regained her health. It is further alleged that defendant knew that he had not removed the diseased ovaries and that plaintiff would not recover her health until they had been removed; that he knew that this representation to the plaintiff that he had removed the ovaries was untrue; and that he made that misrepresentation for the purpose of deceiving plaintiff and inducing her to pay him the sum of $200. It is further alleged that by reason of defendant's misrepresentation and deceit, plaintiff was compelled to resort to the additional surgery described and was thus further damaged in the amount of $500 for additional medical, hospital and surgical bills. Exercise of due care and caution for her safety and welfare and her reliance upon defendant's alleged misrepresentations is alleged. Pain and suffering as a result of the second surgery are also alleged. The ad damnum fixes damages at $22,000.

In Count III plaintiff realleges the paragraphs of Count I which set forth the exercise of due care on plaintiff's part, her employment of defendant and further alleges that defendant wilfully and wantonly committed one or more of the acts and omissions set forth seriatim in Count I which we have quoted in the summary of Count I above. The allegations of damage to plaintiff and proximate cause appearing in Count I are adopted by reference. In other words, Counts I and III are substantially identical, except that Count I charges negligence and Count III charges wilful and wanton misconduct.

Defendant's motion to dismiss sets forth grounds too numerous to detail here, except to say that defendant's principal contentions are that Count I consists of conclusions of the pleader rather than allegations of fact, fails to set forth what the defendant's duty was and fails to set forth any facts which would constitute a violation of that duty. As to Count II, defendant makes the same contentions and also complains that the count is 'argumentative.' As to Count III, the same grounds are urged and it is further asserted that the complaint is indefinite and uncertain and that the pleading does not meet the requirement of section 33(1) of the Civil Practice Act that pleadings be plain and concise.

Both parties rely upon selected provisions of the Civil Practice Act to sustain their contentions. Plaintiff singles out the provisions of section 33(3) which provides that pleadings are to be liberally construed and section 42(2), which provides that no pleading shall be deemed bad in substance which contains such information as shall reasonably inform the opposite party of the nature of the claim or defense he is called upon to meet. Defendant singles out the provisions of section 31 that nothing in that section shall be deemed to affect the necessity of allegations of facts necessary to state a cause of action; and the provisions of section 33(1) that all pleadings shall contain a plain and concise statement of the pleader's cause of action, counterclaim, defense or reply. The pleading is to be tested in the light of and by giving effect to all the provisions relied upon by both parties.

The Civil Practice Act does not authorize so-called notice pleading as plaintiff contends, nor does it require strict pleading as is urged by defendant. A pleading must contain allegations of fact sufficient to state a cause of action. Burr v. State Bank of St. Charles, 344 Ill.App. 332, 100 N.E.2d 773; Stenwall v. Bergstrom, 398 Ill. 377, 75 N.E.2d 864. Verbosity and looseness of form are to be discouraged and in some cases may render the pleading fatally defective. Whether a cause of action is stated is to be judged with the admonitions of liberal construction and reasonable information in mind and the whole complaint must be considered, not merely disconnected parts. Legal conclusions are to be disregarded. Stenwall v. Bergstrom, supra; Heuer v. Davis, 336 Ill.App. 224, 83 N.E.2d 384.

Plaintiff must plead facts which disclose a duty to plaintiff on defendant's part, defendant's breach of that duty and resulting damage to plaintiff caused by the breach of duty. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162. What may be sufficient in a tort action may not suffice in a contract suit, or vice versa. Liberality of construction and the rule of reasonable information do not overcome the requirement that sufficient facts be alleged to state a cause of action. Moulopoulos v. Northern Trust Co., 384 Ill. 41, 50 N.E.2d 737. The rule that a complaint or answer is to be construed against the pleader when attack is made by motion challenging its sufficiency obtains under the Civil Practice Act, but this principle has its play primarily as to resolving ambiguous or inconsistent allegations against the pleader. Garofalo Co., Inc. v. St. Mary's Packing Co., 339 Ill.App. 412, 90 N.E.2d 292; Weise v. Wachsmuth, 332 Ill.App. 662, 76 N.E.2d 532.

Judged with these principles in mind and after a careful reading of each count of the pleading, it is our opinion that sufficient facts are set forth which spell out a cause of action so...