Richardson v. Eichhorn
| Decision Date | 26 July 1958 |
| Docket Number | Gen. No. 58 |
| Parties | Luther RICHARDSON, Plaintiff-Appellant, v. William Hirschell EICHHORN, Defendant-Appellee. M 5. |
| Court | United States Appellate Court of Illinois |
Lansden & Lansden, Cairo, for appellant.
Joe Crain, Mound City, for appellee.
This case involves a question of pleading. The complaint was stricken on motion grounded on the failure to set forth in what way the defendant was negligent, and for the further reason that the same points were again presented which had been ruled upon by the court in previously striking the complaint. After this latest ruling the plaintiff again did not elect to stand on his complaint, but asked leave to amend. The defendant objected on the ground of harassment.
The prior history of the suit as shown by the abstract was as follows: the original complaint was filed May 17, 1950 and it was attacked by motion which was sustained, and the plaintiff given leave to amend. The same thing occurred six times during the ensuing seven years. The ruling now before the court was the seventh time the complaint had been stricken on motion. With these circumstances before it, the court denied leave to amend and dismissed the suit at plaintiff's costs.
On this appeal, the plaintiff does not contend that there was any abuse of discretion in denying leave to amend. The only contention is that the complaint was sufficient and should not have been stricken. Aside from the question whether this point is properly raised under the procedure followed, we are satisfied that adequate grounds are shown to justify the ruling.
The complaint alleges that plaintiff was in defendant's theater building for the purpose of repairing seats. It states that he stepped upon a small object which caused him to fall, that the nature of the object is unknown to plaintiff but it was less than half an inch at its greatest dimension. There is nothing to indicate who put the object there nor how long it had been on the floor. It is not stated that defendant or any agent or servant of defendant was present, or in any position to see the object. It is alleged that its presence could not have been known to plaintiff by exercising reasonable diligence. There is nothing to indicate why defendant could be charged with knowledge of its presence when the plaintiff, who necessarily was present, could not know of it by exercising reasonable diligence.
The complaint also contained generalized conclusions of the pleader with no statement of facts to support them. For example, it charges that defendant: 'Carelessly, negligently and improperly operated, controlled and maintained the theater building and its floor.' This is somewhat elaborated by the further conclusion that the object had been there long enough to infer that defendant, exercising ordinary care could know of it although the plaintiff could not have known of it by exercising ordinary care.
Plaintiff argues that the object might have been a piece of corn, or hard candy, dropped by a child, or a pebble carried in on a shoe. There is no claim that defendant placed it there. The defendant answers that it is equally possible that it was a seat bolt, something that might have dropped off the seats while plaintiff was repairing them, and argues its mere presence cannot raise any inference of the time it was there, and to allow such an inference with no facts to support it, would make the defendant an insurer of the safety of all invitees.
The law is that the owner is not an insurer, and that, if the act of a third person is involved, it is necessary to allege and prove that defendant knew of the unsafe condition, or that it existed for a period of...
To continue reading
Request your trial
-
Knox College v. Celotex Corp.
...(the pleader's) case will meet the legal requirements, without stating the facts,' is insufficient. Richardson v. Eichhorn, 18 Ill.App.2d 273, 276, 151 N.E.2d 819, 821 (4th Dist. 1958). " (Ill.Ann.Stat., ch. 110, par. 42, Historical and Practice Notes, at 98-99 (Smith-Hurd To properly consi......
-
Tru-Link Fence Co., Inc. v. Reuben H. Donnelley Corp.
...(the pleader) needs only to say that his case will meet legal requirements, without stating the facts." Richardson v. Eichhorn (1958), 18 Ill.App.2d 273, 276, 151 N.E.2d 819. In our opinion, the trial court properly concluded Count I failed to state a cause of action. While this court is mi......
-
Boylan v. Martindale, 81-323
...in question makes this allegation merely conclusory and insufficient to withstand a motion to dismiss. (See Richardson v. Eichhorn (1958), 18 Ill.App.2d 273, 151 N.E.2d 819.) Notice pleading is insufficient under our civil practice act. (First National Bank v. City of Aurora (1978), 71 Ill.......
-
Falk v. Martel
... ... Celotex Corp. (1981), 88 Ill.2d 407, 426, 58 Ill.Dec. 725, 734, 430 N.E.2d 976, 985, quoting Richardson v. Eichhorn (1958), 18 Ill.App.2d 273, 276, 151 N.E.2d ... [155 Ill.Dec. 251] 819, 820). Counts I and II of plaintiffs' complaint allege specific ... ...