Reed v. Hoffman

363 N.E.2d 140, 48 Ill. App. 3d 815, 6 Ill. Dec. 611, 1977 Ill. App. LEXIS 2665
CourtAppellate Court of Illinois
DecidedMay 6, 1977
Docket76-352
StatusPublished
Cited by11 cases

This text of 363 N.E.2d 140 (Reed v. Hoffman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reed v. Hoffman, 363 N.E.2d 140, 48 Ill. App. 3d 815, 6 Ill. Dec. 611, 1977 Ill. App. LEXIS 2665 (Ill. Ct. App. 1977).

Opinion

Mr. JUSTICE JONES

debvered the opinion of the court:

Appellant Charles Herrington was a co-defendant in a civil suit that was conducted in the circuit court of Marion County. He appeals from a judgment of that court entered upon a jury verdict in plaintiff’s favor. The judgment found him jointly and severally liable with a co-defendant in the amount of *10,000 and costs of suit.

The suit was commenced to recover plaintiff’s damages for bodily injuries allegedly caused by an unprovoked assault and battery upon him by defendant Hoffman. Appellant’s liability for the injuries was premised on alternate theories of agency or conspiracy. The complaint alleged that defendant Hoffman at the time of the attack was acting as the agent of appellant Herrington or that the attack was made by defendant Hoffman in furtherance of a conspiracy for such purpose on the part of both defendants.

Appellant contends in this appeal that the complaint fails to state a cause of action against him. He argues in support of such contention that the complaint is fatally deficient because it does not allege that defendant Hoffman was acting within the scope of the agency relationship when he attacked plaintiff and because it alleges a conspiracy in a conclusionary fashion without alleging the ultimate fact that the defendant-appellant “conspired” or “combined,” in some manner, with his co-conspirator for the purpose of committing an assault and battery.

The record on appeal reveals that defendant-appellant challenged the complaint three times for failing to state a cause of action against him. The first attack was by a pretrial motion to dismiss or to make the complaint more definite. The second challenge, made at the close of plaintiff’s evidence, was a motion for directed verdict; the third challenge, a renewed motion for directed verdict, was made at the close of all evidence. Both motions for directed verdict were barren of any allegations of the specific defects of the complaint. All three motions were denied. Since defendant-appellant’s post-trial motion was not included in the record on appeal, it is not possible to ascertain if the insufficiency of the complaint was asserted there also.

We note first that this appeal could be summarily dismissed because appellant has not complied with Supreme Court Rule 342 (Ill. Rev. Stat. 1975, ch. 110A, par. 342). That rule requires the appellant to furnish the reviewing court with excerpts from record or an abstract of record. The furnishing of one or the other is the duty of the appellant, and the excerpts or abstract must contain everything necessary to enable the appellate court to decide the issues presented for review. (Shaw v. Kronst, 9 Ill. App. 3d 807, 293 N.E.2d 153; Heritage Shelter Care Home, Inc. v. Miller, 31 Ill. App. 3d 700, 334 N.E.2d 355.) Appellant Herrington has not filed either excerpts from record or an abstract. Nor has he sought waiver of this requirement from the court as he could have under section (i) of the rule (Ill. Rev. Stat. 1975, ch, 110A, par. 342(i)). A dismissal of the appeal could therefore be proper on this ground alone. (Lill Coal Co. v. Bellario, 30 Ill. App. 3d 384, 332 N.E.2d 485; Dunlap v. Marshall Field & Co., 27 Ill. App. 3d 628, 327 N.E.2d 16.) Even so, considering this appeal on the merits, we are not inclined to reverse the judgment.

Appellant is correct in noting that section 31 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 31), which abolished the common law rigors of pleading, when read in conjunction with the liberal construction mandates of Civil Practice Act, sections 33(3) and 42(2) (Ill. Rev. Stat. 1975, ch. 110, pars. 33(3) and 42(2)), does not relieve the plaintiff of his duty to allege sufficient facts to state a cause of action. (Gagne v. Village of LaGrange, 36 Ill. App. 3d 864, 345 N.E.2d 108; Pollack v. Marathon Oil Co., 34 Ill. App. 3d 861, 341 N.E.2d 101.) However, the commands of section 33(3) that “Pleadings shall be liberally construed with a view to doing substantial justice between the parties,” and of section 42(2) that “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet,” have been interpreted to indicate that the essential test of a complaint is that it inform defendant of a valid claim under a general class of cases as distinguished from a complaint which states no cause of action. (Matchett v. Rose, 36 Ill. App. 3d 638, 344 N.E.2d 770; Sparling v. Peabody Coal Co., 16 Ill. App. 3d 301, 306 N.E.2d 79, redd on other grounds, 59 Ill. 2d 491, 322 N.E.2d 5.) As implied above, the rules of. liberal construction do not save a complaint which wholly fails to state a cause of action. Smith v. Chicago Housing Authority, 36 Ill. App. 3d 967, 344 N.E.2d 536; Yelkovanoglu v. Gordon, 19 Ill. App. 3d 261, 311 N.E.2d 322.

We have examined the complaint, taking special notice that the challenge to the sufficiency of the complaint is now made after trial, verdict and judgment, and find that even though it appears that the trial court should have required plaintiff to amend the complaint so as to make it more definite in its allegations of appellant’s liability, the complaint does adequately allege a cause of action. The judgment will therefore be affirmed. We believe that when all fair implications and intendments are ascribed to it, the allegation in the complaint that the defendant who did the actual beating was acting as appellant’s agent at such time embraces the concept that such act was within the scope of the agency. (See Irving v. Rodriquez, 27 Ill. App. 2d 75, 169 N.E.2d 145; Highway Insurance Co. v. Korman, 40 Ill. App. 2d 439, 190 N.E.2d 124.) Similarly, the allegation that the beating was an act in furtherance of a conspiracy for such purpose on the part of both defendants, although conclusionary and devoid of underlying allegations necessary to state the existence of such conspiracy, did adequately notify the defendant of a claim under a general class of cases. These conclusions are compelled because of the peculiar posture of this case created by the insufficiency of the record on appeal supplied to this, court, and the fact that the challenge to the sufficiency of the complaint is made subsequent to trial, verdict and judgment.

Under Supreme Court Rules 321 and 322 (Ill. Rev. Stat. 1975, ch. 110A, pars. 321 and 322) the responsibility for providing an adequate record on appeal is placed principally upon the appellant. (La Pierre v. Oak Park Federal Savings & Loan Association, 21 Ill. App.

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Bluebook (online)
363 N.E.2d 140, 48 Ill. App. 3d 815, 6 Ill. Dec. 611, 1977 Ill. App. LEXIS 2665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-hoffman-illappct-1977.