Opal v. Material Service Corp.

• Decision Date: 02 April 1956
• Docket Number: Gen. No. 46751
• Citation: 9 Ill.App.2d 433,133 N.E.2d 733
• Parties: S. A. OPAL, L. Rahm, William A. Syverson and Sam Lanjarotta, Appellants, v. MATERIAL SERVICE CORPORATION, a corporation, Appellee.
• Court: United States Appellate Court of Illinois

Page 733

133 N.E.2d 733

9 Ill.App.2d 433

S. A. OPAL, L. Rahm, William A. Syverson and Sam Lanjarotta Appellants, v. MATERIAL SERVICE CORPORATION, a corporation, Appellee.

Gen. No. 46751.

Appellate Court of Illinois, First District, First Division.

April 2, 1956.

Rehearing Denied April 23, 1956.

Loeff & Panter, Chicago (Max Chill and Norman S. Esserman, Chicago, of counsel), for appellants.

Schradzke, Gould & Ratner, Lord, Bissell & Brook, Chicago (Benjamin Z. Gould, Gerald Ratner, Stephen A. Milwid, Richard E. Mueller, Chicago, of counsel), for appellee.

FRIEND, Presiding Justice.

This cause, No. 46751, hereinafter referred to as the Opal case, and cause No. 46750, referred to as the Dorsey case, Dorsey v. Material Service Corp., 133 N.E.2d 730, present common questions and issues of law and were heard concurrently in the Circuit Court on similar motions to strike the second amended complaint. Pending the appeals, we here entered an order, on motion of defendant in the Opal case, consolidating the two causes for hearing and argument. The Circuit Court sustained defendants' motions to dismiss the second amended complaints in both proceedings on the grounds of insufficiency, multifariousness, and misjoinder of parties, and plaintiffs in both cases appeal. This opinion decides only the issues presented in the Opal case, No. 46751.

Four plaintiffs here brought suit against the Material Service Corporation. Count I of the second amended complaint alleges that plaintiffs are residents and owners of homes in the Village of Brookfield; that defendant owns and operates a stone quarry located in Lyons, Illinois; that in the operation thereof defendant has used explosives for the purpose of blasting so that it might more readily effect the removal of rock and other materials in the quarry; that plaintiffs' premises are located in residentially zoned sections of the Village of Brookfield, and that all the residences are close to the quarry of defendant; that these premises, buildings and other improvements were in good substantial condition, intact, rested upon undamaged foundations, safely joined and wholly undamaged in structure until the alleged wrongful acts of defendant, as charged in the complaint, occurred; that defendant, in the blasting of rock or other materials in the quarry, by use of explosives during the past five years, and especially the period during the year prior to the filing of suit, disturbed or shook the strata of stone, shale or earth for great distances, including the land, soil and materials on or under the real estate of plaintiffs, and as a natural consequence violent vibrations were produced in the premises of plaintiffs which, as a proximate result thereof, damaged the property of plaintiffs, and that defendant still continues so to blast in said quarry and to damage their premises; that during the past five years, and especially during the year immediately preceding the filing of suit, defendant frequently used and is presently using excessive charges of explosive material and equipment in its quarrying operations, causing thereby tremendous detonations, the effect of which is heard and felt for miles, to the annoyance of plaintiffs and others in the village; that the blasts are of such violent nature that they produce shock, act in effect as an earthquake, and cause buildings to shake and tremble, thereby having caused and still causing material damages to plaintiffs' premises; that during the period prior to suit defendant set off numerous charges of dynamite or other violent explosives and blasted rock or excavated land or soil which caused and produced violent explosions, penetrating the lands of plaintiffs that were naturally and as a result of the explosions transmitted through the earth and other strata and through the air to the lands and properties of the plaintiffs, and resulted in shaking, trembling and displacement of the buildings and structures of the plaintiffs, and caused settling and cracking of the buildings, and other damage; that all the properties of the plaintiffs were within such proximity to the quarry of the defendant that, by reason of the rock strata underlying their homes, the explosions damaged their properties.

The complaint further alleges that plaintiffs at all times exercised ordinary and reasonable care to avoid any loss or damage sustained as a result of defendant's acts but states that defendant failed to use reasonable and ordinary care and was negligent in the operation of its quarry and in the setting off of said explosives, and did carelessly and negligently set off divers dangerous charges of explosives in unreasonable quantities thereof with undue force and violence, and did thereby unreasonably or unnecessarily shake, break, and damage the premises of the respective plaintiffs; that the explosives used in the quarry operations were intrinsically dangerous, and defendant failed to use reasonable means or methods to prevent violent and dangerous vibrations in the rock strata or subsoil extending from the place of explosion to plaintiffs' premises, whereby the premises were so shaken as to damage the property of plaintiffs, and that the damage was a direct and proximate result of the explosions caused by the actions of defendant.

It is further alleged that defendant detonated explosive material in and about the operation of its quarry in violation of its duty to use, run, maintain and operate the said quarry so as to avoid damage to the property of plaintiffs; that the blasting constituted such an annoyance and harassment of all and sundry persons and property in and about the quarry and surrounding territory as to be a continuous nuisance causing continuous damage to the premises of plaintiffs and constituting a menace to their health; that the blasting creates explosions of magnitude, jarring plaintiffs and their property all hours of the day and night, and causing continuous great disturbing noises and vibrations; that as a result thereof plaintiffs are prevented from enjoying their property, and their residences are rendered unhealthful and less fit for occupancy and are being depreciated in value; that plaintiffs have no adequate remedy at law, and unless defendant is restrained from further continuing its blasting operations so as to constitute a nuisance, the unlawful acts will continue. The prayer of the complaint is for a temporary and permanent injunction, but no temporary injunction was applied for or granted.

Count II of the complaint realleges all matters in Count I and in addition charges that the action of defendant was wilful, that the residences of all the plaintiffs were damaged, and sets forth in figures damages to the respective plaintiffs in amounts varying from $1,000 to $2,500. Count II seeks judgment and punitive damages in double the amount of actual damages.

Defendant moved to strike and dismiss Count I or, in the alternative, asked for an order requiring plaintiffs to make definite certain portions of Count I for the following reasons: plaintiffs fail to allege a cause of action against defendant; they are unable to state an equitable cause of action, and they have an adequate remedy at law; the complaint is vague and ambiguous and does not contain such information as to reasonably inform defendant of the nature of the claims of the several parties; Count I fails to show what act or acts of negligence on the part of defendant occasioned the alleged damage or injury, and, further, it fails to specify any particular date or time as to when the alleged damage or injury occurred as the result of any particular acts of defendant; Count I contains allegations as to purported responsibility of defendant which are mere conclusions of the pleaders and not ultimate facts upon which relief can be granted; such general allegations do not constitute a plain and concise statement of the pleaders' purported cause of action as required under the Civil Practice Act and the Rules of the Supreme Court; and the allegations contained in paragraphs 5 through 11 of Count I are not averments of ultimate facts, but are, rather, mere conclusions of the pleaders.

Without waiving the right of have Count I of the second amended complaint dismissed without further leave to amend, should the court deny the motion to dismiss, defendant asks in the alternative that, pursuant to the provisions of sections 42(1) and 45 of the Civil Practice Act, an order be entered requiring plaintiffs to make more definite and certain Count I in the following particulars: (1) the exact date or dates, if any, when defendant is alleged to have performed any of the acts complained of in paragraphs 5 through 11 of Count I; (2) the date or dates, if any, when the first damage occurred; (3) a statement of the proximity to the quarry of defendant, in miles or fractions thereof, of the premises of each of the plaintiffs; and (4) the manner in which the use of explosives was excessive, specifying the nature of the charges. In their motion to dismiss Count I defendant asked that plaintiffs be given no further leave to amend.

The motion directed to Count II asked that it be dismissed or, in the alternative, that the court enter an order requiring plaintiffs to make definite certain portions of Count II or, in the further alternative, that the multiple causes of action be severed for the following reasons: (1) that Count II is wholly insufficient for failure to state a claim against defendant; (2) that there is a misjoinder of causes of action; it raises no common substantial question of law or fact which would entitle plaintiffs to join their various causes of action; from the face of the complaint it appears that the several plaintiffs claim separate and distinct causes of action for damages alleged to have occurred to the several improvements standing upon the real estate owned by them respectively; (3) that the relief sought by the several plaintiffs does not...