Ingersoll v. Klein
| Decision Date | 25 February 1969 |
| Docket Number | Gen. No. 68--108 |
| Citation | 245 N.E.2d 288,106 Ill.App.2d 330 |
| Parties | Marie INGERSOLL, Administratrix of the Estate of Wayne Ingersoll, Deceased, Appellant, v. Walter Robert KLEIN, also known as Bob Klein, individually and as Special Administrator of the Estate of William Klein, Deceased, Appellees. |
| Court | United States Appellate Court of Illinois |
J. Edward Jones, Blue Island, for appellant.
Gunner & Keller, Dixon, for appellees.
Plaintiff appeals from an order dismissing her complaint for wrongful death. The complaint alleges an action under the laws of Iowa. The order dismissing the complaint states that the right of action of the plaintiff is to be determined by reference to the law of Illinois rather than the law of Iowa.
The plaintiff urges procedural error as well as error in the determination of the applicable law.
The complaint contains four separate counts in which the plaintiff alleges the right to recover from the defendants for the death of Wayne Ingersoll, which occurred by drowning on January 12th, 1963, in the Mississippi River. Count I of the complaint alleges a violation of Chapter 321.494 of the Iowa Code. 1 This count charges the defendant, Walter Robert Klein, with 'reckless operation' of an automobile in driving on the ice on the surface of the Mississippi River, alleged to be frozen over and safe for driving, except where there were air pockets. It is further alleged that at a point near the Iowa bank of the river, the exact location of which is not known to the plaintiff, there was an air pocket under the ice which was known to the defendants.
A second count of the complaint charges the same defendant, Walter Robert Klein, with driving a vehicle under the influence of intoxicating liquor in violation of the same Iowa statute referred to in count I.
The third count of the complaint is directed against William C. Klein, the father of Walter Robert Klein, on the theory that he was liable for his son's acts causing the death. This count is based upon Chapter 321.493 of the Iowa Code. 2
Count four of the complaint is also directed against the defendant, William C. Klein, and based upon allegations contained in other counts.
Defendants first filed an answer denying that Iowa law was applicable to the case and also filed interrogatories to be answered by the plaintiff. There was no further activity in the case until almost two years later when plaintiff filed a notice and motion to obtain leave to answer interrogatories and requesting that the court strike the answer of the defendants for the reason that it was not verified and contained general issues. Plaintiff was given leave to file an answer to interrogatories, and defendants' answer was ordered stricken with leave to file an amended answer. Several days later, on oral motion of the attorneys for the defendants and without notice to the plaintiff, the order was modified to provide that the defendants might answer Or plead within the time granted. The defendants filed a request for admissions of facts and the plaintiff admitted the following facts:
'1. That the plaintiff and all that may benefit from the law suit reside in Illinois.
2. That the deceased Wayne Ingersoll at the time of his death and immediately prior thereto was a resident of Illinois.
3. That the deceased Wayne Ingersoll met his death by drowning in the Mississippi River.'
Thereafter, defendants filed a motion to strike and dismiss the complaint. In that motion the defendants requested that the court strike the paragraphs of the complaint making reference to Iowa law, alleging that the State of Iowa had no significant interest in the suit and alleging that the State of Illinois had significant interests. Thereafter, defendants amended their motion to set up the restrictions contained in Chapter 70, Section 2 of the Ill.Rev.Stat. 1961, 3 providing generally that no action shall be brought or prosecuted in Illinois to recover damages for death occurring outside of the State of Illinois.
The court subsequently entered an order holding that the cause of action might be prosecuted in the State of Illinois, but also finding that the laws of the State of Illinois, rather than the laws of the State of Iowa, determine the rights of the parties. An order dismissing the complaint was entered and the plaintiff was given leave to file an amended complaint. Before the time allotted, plaintiff moved and obtained an order to amend the complaint by substituting the personal representative of the defendant, William Klein, as a defendant in the suit, suggesting the death of Klein; and plaintiff further elected to stand on her complaint as amended.
We will approach the procedural question first. Plaintiff argues that by filing an answer to the complaint the defendants have admitted the sufficiency of the complaint. They further argue that since the order as originally entered gave leave to file an amended answer, it was not proper to get leave from the court to plead rather than answer without having given notice in advance to the plaintiff.
Plaintiff's argument that the defendants by first answering have irrevocably admitted that the complaint states a cause of action is not persuasive. The Civil Practice Act expresses a purpose to construe pleadings and amendments liberally with a view to doing substantial justice between the parties and determining cases according to the substantive rights of the parties, consistent with fair and orderly procedures. See Ill.Rev.Stat.1965, Chap. 110, Sec. 4, Sec. 33, Sec. 46. The trial court acted within its discretion under the Practice Act, in permitting the defendant, after the answer had been stricken on the motion of the plaintiff for technical deficiencies, to further plead by way of motion. The question of the non-applicability of the Iowa law set forth in the complaint was raised in the answer and the plaintiff has not shown in what manner she has been damaged or has lost any rights by allowing the motion to dismiss to be filed. Morris v. Goldthorp, 390 Ill. 186, 189, 60 N.E.2d 857 (1945); Kovalik v. Baldwin, 3 Ill.App.2d 210, 212, 121 N.E.2d 53 (1954). While in the authorities cited the court granted defendant leave to withdraw his answer, and in the instant case the answer was stricken on motion of the other party, we can make no meaningful distinction based on those differences.
Plaintiff has properly complained of the action of the defendants in securing a change in the language of the order dismissing the answer by Ex parte application to the court below. We most strongly disapprove of such conduct. However, under the circumstances of this case we can find no such damage to the plaintiff by this conduct that would justify the striking down of the motion.
An issue has also been raised as to whether the motion to dismiss was sufficient to properly raise the dispute of applicable law. While the motion is not labeled, defendants contend that the motions made under Section 45 of the Civil Practice Act could equally be considered proper under Section 48(1) of the Civil Practice Act, and that their request for admissions of fact can be used as an affidavit in connection with such motion. Plaintiff argues that the matters relied upon by the defendants to contest the applicable law do not appear on the face of the complaint and that, therefore, the motion that defendants have made is under Section 48. Plaintiff continues that such motion is incorrect as the ground contested does not fall under any of the enumerated sections of Section 48, supporting his position with the case of Hansen v. Raleigh, 391 Ill. 536, 63 N.E.2d 851, 163 A.L.R. 1425 (1945).
That case lends support to the prosition that affidavits cannot properly be considered on the motion made under the provisions of Section 45. But Section 48 is intended to supplement Section 45. (See Smith-Hurd Illinois Annotated Statutes, Chap. 110, Sec. 48, Page 354) Both sections presuppose that the moving party considers a pleading attacked to be so insufficient as to obviate further pleading (Barrett v. Continental Ill. Nat. Bank & Trust Co., 2 Ill.App.2d 70, 118 N.E.2d 631 (1954)), and a motion to dismiss may be properly sustained whether it be regarded as filed under Section 45 or under Section 48 where the motion points out particular defects which render the complaint insufficient. See Greenberg v. Waukegan-Caldwell Bldg. Corp., 27 Ill.2d 620, 624, 190 N.E.2d 335 (1963).
It is noted that Section 48, Subsection (1)(i) of the Practice Act was added subsequent to the decision in Hansen v. Raleigh (supra). Section 48 provides for a motion to be pleaded where 'the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal...
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