DMI, Inc. v. Country Mut. Ins. Co.

• Decision Date: 18 March 1980
• Docket Number: No. 79-445,79-445
• Citation: 82 Ill.App.3d 113,402 N.E.2d 805,37 Ill.Dec. 803
• Court: United States Appellate Court of Illinois
• Parties: , 37 Ill.Dec. 803 DMI, INC., a Delaware Corporation, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, a Mutual Insurance Company, and Wayne Taylor and Lloyd Taylor, d/b/a Taylor Farms, Defendants-Appellees.

Page 805

402 N.E.2d 805

82 Ill.App.3d 113, 37 Ill.Dec. 803

DMI, INC., a Delaware Corporation, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, a Mutual Insurance Company, and Wayne Taylor and Lloyd Taylor, d/b/a Taylor Farms, Defendants-Appellees.

No. 79-445.

Appellate Court of Illinois, Third District.

March 18, 1980.

Dean B. Rhoads, Sutkowski & Washkuhn Associates, Peoria, for plaintiff-appellant.

James B. Lewis, Peoria, for Country Mut. Ins. Co.

Robert C. Jenkins, Sycamore, for Wayne Taylor and Lloyd Taylor, d/b/a Taylor Farms.

SCOTT, Justice:

LaVerne Smith was injured on May 26, 1975, when the hose on an anhydrous ammonia applicator ruptured. The applicator and hose were furnished to Smith by Wayne Taylor and Lloyd Taylor. Smith suffered injuries to his eyes and, on September 8, 1975, brought suit in the circuit court of DeKalb County against the Taylors to recover damages.

Country Mutual Insurance Company undertook to defend the Taylors in the September 8, 1975, action pursuant to a policy of insurance issued to one of the defendants therein, Wayne Taylor. Subsequently the DeKalb County circuit court entered a temporary restraining order requiring the Taylors to "refrain from repairing, altering, tampering with, or otherwise changing from its present condition the anhydrous ammonia applicator, or any component part thereof, which was furnished to the plaintiff, LaVerne Smith, and which caused injury to the plaintiff on May 26, 1975." Sometime thereafter, either Country Mutual or the Taylors lost the ruptured hose.

After it was determined that the hose had been lost, Smith amended his original complaint to name the manufacturer of the hose, DMI, Inc., as an additional party defendant. DMI responded by bringing this separate action against the Taylors and Country Mutual in the circuit court of Peoria County. In this second action DMI alleges that it has been damaged by the loss of the ruptured hose in that it is unable to present a "good and meritorious and substantial defense" to the claims of plaintiff Smith in the DeKalb County Lawsuit. The relief which DMI seeks in the Peoria County action includes money damages and a declaratory judgment finding the defendants liable to DMI for all sums it may become obligated to pay as a result of Smith's personal injury action. The trial court dismissed the corporate plaintiff's complaint and refused to grant leave to amend.

All parties agreed that amendments should be permitted unless the defects in the complaint cannot be cured. (Miller v. Enslen (1978), 60 Ill.App.3d 865, 18 Ill.Dec. 129, 377 N.E.2d 282.) Thus the issue is, can DMI in any way amend its complaint to state a cause of action at this time?

DMI argues in its brief that its complaint is based on negligence. It cites Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617, Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538, and Agee v. First National Bank of Maywood (1979), 68 Ill.App.3d 794, 25 Ill.Dec. 435, 386 N.E.2d 899, for the proposition that three elements must be alleged to set out a prima facie case of negligence. The three elements, according to DMI's brief, are: (1) the existence of a duty owed by Country Mutual and the Taylors to DMI; (2) a breach of that duty; and (3) an injury proximately resulting from that breach. Without determining whether these facts could ever state a cause of action, we think it is clear that at this stage in the progress of the DeKalb County action, DMI's injuries are too uncertain and too speculative to support the complaint in question. Whether there might eventually be recovery under these facts is an issue not today ripe for our consideration, but it is our decision that an action now is premature.

This court, because of its training and experience, may properly take judicial notice of the vagaries of litigation. (Bowman v. Illinois Central R.R. Co. (1956), 9 Ill.App.2d 182, 132 N.E.2d 558, rev'd on other grounds (1957) 11 Ill.2d 186, 142 N.E.2d 104, cert. den. (1957) 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed.2d 49; Secco v. Chicago Transit Authority (1954), 2 Ill. App.2d 239, 119 N.E.2d 471; Morrissey v. Morrissey (1939), 299 Ill.App. 173, 19 N.E.2d 835; Lauzen v. Lauzen (1967), 81 Ill.App.2d 472, 225 N.E.2d 427.) In so doing, we must conclude as did the court below that DMI's injury is now so contingent, so uncertain, and so speculative as to defy any legally acceptable estimation. Any recovery by DMI against the Peoria County defendants is dependent upon the unheard proof of the plaintiff Smith. Indeed, the allegation of damage in Smith's complaint does not even command the respect of an instrument...