Jensen v. Wetherell

Mr. J(jstioe Adams delivered the opinion of the court. This is an appeal from a judgment sustaining a demurrer filed by appellee to a declaration filed by appellant. The declaration contains nine counts. The first count sets forth the facts relied on as a. cause of action, and omitting the formal commencement, is as follows : “ That on the 25th day of April, 1884, the defendant was possessed of, using, operating and controlling a planing mill, 347 feet east of South Lincoln street, 322 feet south of Blue Island avenue, and 116 feet west of South Wood street, in Chicago, Cook county, Illinois; that said planing mill was an open and unguarded structure situated in a lot or parcel of land to which free access was allowed, where children were allowed and permitted, with the knowledge and consent of the defendant, to congregate and play at pleasure adjacent to certain streets and highwaj's in the midst of a thickly settled and populous district of said city, and supplied with certain dangerous machinery, to wit, planers, consisting among other things of certain revolving interlocking cog-wheels of such a character as to be attractive to children, and appeal to their childish curiosity, the dangerous character of which the defendant knew; that the defendant, well knowing the premises, while so operating said mill, and while said mill remained open and children were allowed to play around it as aforesaid, wrongfully, carelessly, negligently and improperly permitted the third planer from the north end of said mill to be, and continue badly, insufficiently and defectively covered, and the plaintiff, a child of the age of nine years, drawn and attracted to said dangerous machine by childish curiosity, then and there necessarily and unavoidably, while exercising all due care and caution for his own safety, had his left hand caught in said interlocking wheels, and four fingers of his said left hand so badly injured, that the said fingers had to be amputated, and the thumb of his left hand ivas split and torn, and thereby suffered great pain and mental anguish, was prevented from transacting his business, and lost large gains and profits, and his means of making and earning a living were greatly reduced, and his said injuries are permanent and lasting; that he expended five hundred dollars endeavoring to be healed.” The second count contains substantially the same allegations and the additional allegation, “ That said planing mill and platform on which the planers were located was, with the knqwledge and consent of the defendant, a common playground for children.” These counts are sufficient to an understanding of the cause of action. The demurrer was general and special, but causes of special demurrer not relied on by appellee in his argument must be deemed waived. Appellee’s counsel says that “ In each count, where any neglect of duty is alleged at all, several acts of neglect are charged in the same count,” etc. This is said with reference to allegations in some of the counts, “ that it was the duty of the defendant ” to do so and so. The answer to this objection is well stated by appellee’s counsel in another part of his argument, where he says : “ The allegation of duty is superfluous where the facts stated show a legal liability, and it is useless where they do not,” citing Angus v. Lee, 40 Ill. App. 304, and Gibson v. Leonard, 37 lb. 344. “ Pleading is the statement, in a logical and legal form, of the facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense.” 1 Chitty’s PL, 9 Am. Ed., 213. What duty is incumbent on a defendant, on the facts averred in the plaintiff’s declaration, is a question of law and not of fact. To state the duty is, therefore, superfluous and immaterial; it is mere surplusage and not even obnoxious to special demurrer. Id. 229. The remainder of appellee’s argument is devoted to a discussion of the merits, viz.: whether any of the counts of the declaration is good in substance. We are of opinion that the first and second counts are good in substance, and not obnoxious to general demurrer, nor to special demurrer for any cause relied on in the argument of appellee’s counsel. City of Pekin v. McMahon, 154 Ill. 141; Siddall v. Jansen, 168 Ill. 43. The filing nine counts for the purpose of stating the facts which appellant relies on seems to us wholly unnecessary, and we have not critically examined all the counts in the declaration, nor do we think it necessary, so to do. The judgment sustains the demurrer to all the counts, and therefore if any count is good, the judgment must be reversed. The judgment will be reversed and the cause remanded.