Witzig v. Illinois Power Co., Gen. No. 11062

• Court: United States Appellate Court of Illinois
• Writing for the Court: SMITH; TRAPP, P.J., and CRAVEN
• Citation: 251 N.E.2d 902,114 Ill.App.2d 139
• Parties: Edward WITZIG, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, a Corporation, Defendant-Third Party Plaintiff-Appellee, v. KLOPFENSTEIN GRAIN COMPANY, Third Party Defendant-Appellee.
• Docket Number: Gen. No. 11062
• Decision Date: 16 October 1969

Page 902

251 N.E.2d 902 114 Ill.App.2d 139 Edward WITZIG, Plaintiff-Appellant,
v.
ILLINOIS POWER COMPANY, a Corporation, Defendant-Third Party
Plaintiff-Appellee,
v.
KLOPFENSTEIN GRAIN COMPANY, Third Party Defendant-Appellee. Gen. No. 11062. Appellate Court of Illinois, Fourth District. Oct. 16, 1969.
Rehearing Denied Nov. 18, 1969.

Costigan & Wollrab, Bloomington, for plaintiff-appellant; Guy Fraker, Bloomington, of counsel.

[114 Ill.App.2d 140] Livingston, Barger, Brandt, Slater & Schroeder, Ralph E. Schroeder, Bloomington, Heyl, Royster, Voelker & Allen, Lyle W. Allen, Richard M. Baner and Duncan B. Cooper, III, Peoria, for appellees.

SMITH, Justice.

The single issue in this case is whether or not the plaintiff's own discovery deposition contains admissions which convict him of contributory negligence so that the trial court was justified in granting the defendant's motion for summary judgment. The trial court held that it did and there being no triable issue of fact on this point, entered a judgment in favor of the defendant in bar of plaintiff's suit. Plaintiff appeals.

This court has had occasion recently to consider the rules applicable to summary judgment, Brooks v. Dean Berenz Asphalt Co., Inc., 83 Ill.App.2d 258, 227 N.E.2d 100, and also while sitting in the first district, Watkins v. Lewis, 96 Ill.App.2d 182, 237 N.E.2d 830. In each of these cases, we carefully enunciated the rules applicable and their repetition in this opinion would appear to be pure redundancy. In the Berenz case, we held that summary judgment was proper; in the Watkins case we held that summary judgment was improper. We applied and used in same rules in reaching diametrically opposite results for the very simple and cogent reason that the facts in the cases were different. Plaintiff

Page 903

cites Cannon v. Thompson, 33 Ill.App.2d 233, 179 N.E.2d 37, as well as our own Watkins case, to indicate that the courts are disenchanted with summary judgments and that the case at bar is typical of why that is so. While we do not read those cases to so indicate and certainly not to so hold, the blunt fact remains that a motion for summary judgment should be allowed on motion of either party where there is no genuine issue of any material fact to litigate. As stated in Allen v. Meyer, 14 Ill.2d [114 Ill.App.2d 141] 284, 292, 152 N.E.2d 576, 580, the policy is succinctly stated thus:

'Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.'

Plaintiff suggests that contributory negligence is a question ordinarily to be decided by a jury. This may be conceded. He asserts that to decide that issue on a motion for summary judgment denies him his day in court. That, too, may be conceded. Actually a motion for summary judgment only decides that there is no reason for the plaintiff or anybody else to waste a day in court when there is no genuine issue or material fact to be decided. All we have before us and all the trial court had before it was whether or not on this record there is a genuine issue of a material...