Lasko v. Meier

• Decision Date: 21 May 1946
• Docket Number: No. 29369.,29369.
• Citation: 67 N.E.2d 162,394 Ill. 71
• Parties: LASKO v. MEIER et al.
• Court: Illinois Supreme Court

394 Ill. 71

67 N.E.2d 162

LASKO

v.MEIER et al.

No. 29369.

Supreme Court of Illinois.

May 21, 1946.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Montgomery County; F. R. Dove, Judge.

Suit by Wallace Lasko against Ferd Meier and Vern Meier to recover for injuries sustained in automobile collision. The case was dismissed on motion as to Ferd Meier during progress of the trial. From a judgment in favor of the plaintiff as against Vern Meier, Vern Meier appealed to the Appellate Court. From a judgment of the Appellate Court, 327 Ill.App. 5, 63 N.E.2d 531, affirming the judgment, Vern Meier appeals.

Judgment affirmed.

Omer Poos, of Hillsboro, for appellant.

J. D. Wilson, of Nokomis, for appellee.

THOMPSON, Chief Justice.

The plaintiff, Wallace Lasko, filed suit in the circuit court of Montgomery county against Ferd Meier and his son, Vern Meier, to recover damages for personal injuries. On plaintiff's motion, during the progress of the trial, the case was dismissed as to the defendant, Ferd Meier. The jury returned a verdict for $8000 in favor of plaintiff and against the remaining defendant, Vern Meier. The trial court entered judgment on the verdict. The Appellate Court affirmed the judgment and the cause is now before this court for further review, upon leave granted.

It is first contended that the complaint charges a cause of action against Ferd Meier, only, and contains no statement of a cause of action against Vern Meier, the appellant; that although the complaint alleges that Ferd Meier, through his servant, Vern Meier, committed one or more acts of negligence, it contains no charge of negligence against Vern Meier, the servant, or any allegation or charge that Vern Meier, the servant, was guilty of any act of negligence; and that the negligence alleged was the negligence only of the master, Ferd Meier. Appellee, in opposition, asserts that the complaint states sufficient facts to support the verdict and judgment and that, since no attack was made upon it in the trial court, any defects therein must be considered as cured by the verdict.

All intendments are in favor of the sufficiency of a complaint which is not questioned until after verdict. Connett v. Winget, 374 Ill. 531, 30 N.E.2d 1. A verdict will cure not only all formal and purely technical defects and clerical errors in a complaint, but will also cure any defect in failing to allege or in alleging defectively or imperfectly any substantial facts which are essential to a right of action, if 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. 41 Am.Jur. 575, sec. 407; Miller v. Kresge Co. 306 Ill. 104, 137 N.E. 385;Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651;Sargent Co. v. Baublis, 215 Ill. 428, 74 N.E. 455. If the declaration or complaint omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the facts alleged on which issue is joined, a verdict for the plaintiff will not cure the omission. Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 803. Where the declaration or complaint and the issue joined upon it do not fairly impose the duty on the plaintiff to prove the omitted fact, the omission will not be cured by verdict. Chicago & Alton R. Co. v. Clausen, 173 Ill. 100, 50 N.E. 680. This court, in the case of Bowman v. People, 114 Ill. 474, 2 N.E. 484, 485, which was an action at law, quoted from Chitty, in his work on Pleading, as follows: ‘The expression ‘cured by verdict’ signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings was duly proved at the trial. And such intendment must arise, not merely from the verdict, but from the united effect of the verdict and the issue upon which such verdict was given. On the one hand, the particular thing which is presumed to have been proved must always be such as can be implied from the allegations in the record by fair and reasonable intendment; and, on the other hand, a verdict for the party in whose favor such intendment is made is indispensably necessary.' The rule is, as stated in the last-cited case, that if the declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect. The question whether a complaint discloses a cause of action is always open to consideration in a court of review. There is a substantial and material difference between a complaint which alleges no cause of action and which may be questioned at any time and one which defectively or imperfectly alleges a cause of action and is good after verdict. Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177. 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. But, on the other hand, if the complaint states a cause of action, no matter how defectively or imperfectly alleged, and the same is not challenged below, then such defectively stated cause of action is cured by verdict and cannot be questioned on appeal.

Our inquiry, therefore, is not whether the complaint in this cause is skillfully drawn in compliance with the rules of good pleading or whether it contains a perfect statement of a cause of action against appellant, but whether it alleges, regardless of how imperfectly or defectively it may be stated, any cause of action whatever as to him. A cause of action consists of a right belonging to the plaintiff and some wrongful act or omission done by the defendant by which that right has been violated and a grievance suffered therefrom by the plaintiff for which the law gives him a right to sue. A cause of action includes every fact necessary for the plaintiff to prove to entitle him to succeed, and every fact which the defendant would have a right to traverse. City of Elmhurst v. Kegerries, 392 Ill. 195, 64 N.E.2d 450. The terms ‘right of action’ and ‘cause of action’ are equivalent expressions. Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651.

It is necessary, in an action to recover damages for personal injuries, to allege and prove the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains, the failure of the defendant to perform that duty, and the resulting injury to the plaintiff. Bremer v. Lake Erie & Western R. Co. 318 Ill. 11, 148 N.E. 862, 41 A.L.R. 1345;Miller v. Kresge Co. 306 Ill. 104, 137 N.E. 385;McAndrews v. Chicago, Lake Shore & Eastern R. Co. 222 Ill. 232, 78 N.E. 603. The Civil Practice Act provides that all pleadings shall contain a plain and concise statement of the pleader's cause of action, counterclaim, defense or reply. Ill.Rev.Stat.1945, chap. 110, par. 157. It also provides that no pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet. Ill.Rev.Stat.1945, chap. 110, par. 166. We find that before the Civil Practice Act it was held that a declaration should contain a clear and distinct statement of the facts which constitute the cause of action so that they might be understood by the party who was to answer them and that the main purpose of a pleading was accomplished when, by reasonably intelligible allegations, the opposing party was advised of the case to be made against him. Miller v. Kresge Co. 306 Ill. 104, 137 N.E. 385. It was also held that all that was necessary in the statement of a plaintiff's claim in a declaration was a clear and concise statement, couched in simple language, of sufficient ultimate facts to show a liability on the part of the defendant to the plaintiff. Lincoln Park Coal & Brick Co. v. Webash R. Co. 338 Ill. 82, 170 N.E. 8.

The complaint in the present case contains only one count. Its averments, in so far as pertinent to the question raised by appellant, are that the defendant, Ferd Meier, was the owner of and, through his agent, servant and son, Vern Meier, was possessed of and had control of a certain automobile; that the defendant, Ferd...