Gustafson v. Consumers Sales Agency

• Decision Date: 22 January 1953
• Docket Number: No. 32500,32500
• Citation: 110 N.E.2d 865,414 Ill. 235
• Parties: GUSTAFSON v. CONSUMERS SALES AGENCY, Inc.
• Court: Illinois Supreme Court

Page 865

110 N.E.2d 865

414 Ill. 235

GUSTAFSON v. CONSUMERS SALES AGENCY, Inc.

No. 32500.

Supreme Court of Illinois.

Jan. 22, 1953.

As Modified on Denial of Rehearing March 24, 1953.

Winstein & Rimmerman, Rock Island (Stephen C. Miller, Rock Island, of counsel), for appellant.

McDonald & McCracken, Moline (Elliott R. McDonald and Dan H. McNeal, Moline, of counsel), for appellee.

BRISTOW, Justice.

Plaintiff, Gust Gustafson, as administrator of the estate of Calvin Keith Gustafson, deceased, instituted suit for damages against defendant, Consumers Sales Agency, Inc., for the wrongful death of plaintiff's intestate as a result of an alleged attractive nuisance maintained on defendant's premises. The circuit court of Rock Island County entered judgment on the jury verdict in favor of plaintiff in the amount of $5000, and the Appellate Court reversed that judgment on the ground that the complaint failed to specifically allege the names of decedent's next of kin and that they suffered pecuniary damages. This court has allowed plaintiff's petition for leave to appeal.

The salient issue presented by this appeal is whether the defects of the complaint, interposed for the first time on review, constituted reversible error. A secondary issue, urged by defendants, but not considered in the Appellate Court's opinion, is the sufficiency of the evidence to establish an attractive nuisance.

The complaint, as amended, alleged in substance that plaintiff is the duly appointed administrator of the estate of Calvin Keith Gustafson, deceased; that defendant owned certain premises which it negligently failed to grade so that water was permitted to collect in the ravines thereon to a depth of some fifteen feet in certain portions; that there were sticks, logs and other objects afloat and frozen in this artificial watercourse, which was open and unguarded even though located adjacent to public streets and in close proximity to thickly populated districts; that this watercourse constituted an attractive nuisance to children of tender years who would be attracted to the situs and liable to fall into the water; that defendant knew long prior to January 14, 1950, or by the exercise of ordinary care could have known that children played there; that plaintiff's intestate, a child of seven, lived near these premises, and was attracted to such floating objects in the open and unguarded watercourse, and while at play thereon at 4:45 P.M., January 14, 1950, and as a direct result of defendant's negligence in maintaining the attractive nuisance, plaintiff's intestate unavoidably fell into the water and was drowned; that as a consequence of defendant's negligence which caused the death of said Calvin Keith Gustafson, plaintiff suffered damages in the amount of $15,000.

The evidence adduced at the trial revealed that on January 14, 1950, Calvin Keith Gustafson, age seven, together with two friends aged five and six, went to the pond on defendant's premises. One of the children, Billy Roberts, testified that he and Calvin slid on the ice and that Calvin fell in a hole in the pond. Billy ran home to tell his mother, and she testified that after the boy pointed out the hole in the ice to her, they went to notify Calvin's mother. She further stated that the Gustafsons have only one other child, a boy named Wayne, age twelve.

When Mrs. Gustafson saw the hole in the ice she knew the child was down there, and three members of the fire department, who were summoned, put a 28-foot ladder on the ice to support one of the firemen while he probed for the body with a pole. After probing some twenty minutes they recovered the body of the boy who was pronounced dead on arrival at the hospital.

Mrs. Gustafson testified that she was the mother of the deceased child, that her husband's name was Gust, and that they had only one other child, Wayne, age twelve.

A fourteen-year-old boy testified that he had been sliding on the pond about two weeks before, and also had seen other boys and girls sliding there just two days before the accident, when the ice was wet and partly melted. Another child and her mother testified that the child had been sliding on the pond and fell into water up to her waist some two weeks before this accident. The mother, not knowing who owned the property, notified the police of the occurrence. One of defendant's officials denied any knowledge of children sliding on the pond, although subsequently he admitted chasing children off the property several times, despite the fact that a no-trespassing sign was posted.

Evidence was further adduced that the pond was clearly visible from the back yard of one of the children with whom the deceased customarily played, and that the watercourse was completely filled in two months after the accident, although deemed too expensive a project when contemplated some time prior to the accident. Plaintiff's exhibits of the pond, introduced in evidence, revealed that it was partially frozen and contained numerous floating objects, including a five-gallon drum.

On the basis of the foregoing facts, the jury returned a verdict for plaintiff in the amount of $5000. The court entered judgment on that verdict, and denied defendant's motion for judgment notwithstanding the verdict, which was directed to the sufficiency of the evidence to establish an attractive nuisance.

On appeal therefrom, defendant urged as grounds for reversal plaintiff's failure to allege the names and number of the decedent's next of kin, or that they suffered pecuniary loss, and the Appellate Court, 346 Ill.App. 493, 105 N.E.2d 557, held that such omissions constituted reversible error.

In adjudging whether this pleading contained a sufficient allegation of the elements necessary to assert a right to recover under the Wrongful Death Act (Ill.Rev.Stat.1951 chap. 70, pars. 1 and 2,) it is incumbent upon this court to construe that act together with the provisions of the Civil Practice Act, and other applicable procedural statutes and concepts. Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E.2d 838.

Under the Wrongful Death Act, it has been held that it is necessary to allege that decedent had next of kin and that they suffered pecuniary damages. North Pier Terminal Co. v. Hoskins Coal and Dock Corp., 402 Ill. 192, 83 N.E.2d 748; Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170; Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 803. It is uncontroverted, however, that the complaint herein contains several references to plaintiff's intestate. The decedent, a seven-year-old child, is referred to throughout the complaint as plaintiff's intestate, and it appears that the plaintiff administrator has the same last name as his intestate. The names and relationship of the next of kin are not contained in the complaint.

We cannot agree with the statement of the Appellate Court, however, that the sufficiency of the complaint was questioned in the trial court by the motion for judgment notwithstanding the verdict, for such objections must be made specifically under section 45 of the Civil Practice Act, (Ill.Rev.Stat.1951, chap. 110, par. 169,) and in none of defendant's motions is there any reference to the omissions of this allegation in the complaint. On the contrary, from the record it appears that defendant apparently assumed that the complaint was sufficient in this respect, since in paragraph 4 of its motion for judgment notwithstanding the verdict defendant refers to 'those benefitting by the action,' and in paragraph twelve of said motion defendant refers to the necessity of proof of due care on the part of plaintiff, and the 'brother of the decedent.' Moreover, as hereinbefore noted, evidence was established on the issue of the survival and identity of decedent's next of kin.

The instant case is, therefore, clearly distinguishable from the North Pier Terminal Co. case, even apart from a comparison of the respective omissions in the complaints, inasmuch as the sufficiency of the complaint in that case was challenged by appropriate motion in the trial court, and the plaintiff therein conceded that the omissions were fatal.

In the instant case, where the sufficiency of the complaint is challenged for the first time on appeal, either because defects are newly discovered, or because they were reserved for entrapping an unwary opponent, we are obliged to consider the applicability and effect of the common-law doctrine of 'aider by verdict,' of the provisions of section 42(3) of the Civil Practice Act, (Ill.Rev.Stat.1951, chap. 110, par. 166(3)), and of section 6 of the Amendments and Jeofails Act. Ill.Rev.Stat.1951, chap. 7, par. 6.

At common law the doctrine of 'aider by verdict' was developed to estop parties who were content to try their cases on bad pleadings from insisting in the appellate tribunal, after they had the benefit of the jury's deliberation, that the pleadings were insufficient. Under this principle a verdict was deemed to cure not only all formal and purely technical defects in a complaint, but also any defect in failing to allege, or in alleging imperfectly, any substantial facts which are essential to a right of action, provided 'the issue joined is such as necessarily requires, on the trial, proof of the facts so omitted or imperfectly stated and if such facts can be implied from the allegations of the complaint by fair and reasonable intendment.' Sargent Co. v. Baublis, 215 Ill. 428, 74 N.E. 455; Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162, at pages 164, 165. This doctrine of 'aider by verdict' was qualified, however, by the rule that 'If, with all intendments in its favor, a complaint wholly and absolutely fails to state any cause of action at all, objection can be made to it for the first time on appeal.' However, if a cause of action is stated, no matter how defectively, and the complaint is not challenged below, then such defect is cured by the verdict. Sargent Co. v. Baublis, 215 Ill....