{ "id": 5476049, "name": "PETER BEJDA et al., Appellees, v. SGL INDUSTRIES, INC., et al., Appellants", "name_abbreviation": "Bejda v. SGL Industries, Inc.", "decision_date": "1980-09-15", "docket_number": "No. 52386", "first_page": "322", "last_page": "331", "citations": [ { "type": "official", "cite": "82 Ill. 2d 322" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "161 A.2d 69", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0 }, { "cite": "32 N.J. 358", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 566715 ], "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nj/32/0358-01" ] }, { "cite": "64 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429275 ], "weight": 2, "pin_cites": [ { "page": "574" }, { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0570-01" ] }, { "cite": "38 Tenn. L. Rev. 325", "category": "journals:journal", "reporter": "Tenn. L. Rev.", "year": 1971, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "51 A.L.R.3d 8", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1973, "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2874902 ], "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0507-01" ] }, { "cite": "50 Ill. App. 3d 359", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639207 ], "year": 1975, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0359-01" ] }, { "cite": "130 Ill. App. 2d 844", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2825006 ], "year": 1977, "pin_cites": [ { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0844-01" ] }, { "cite": "32 Ill. 2d 612", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839667 ], "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0612-01" ] }, { "cite": "87 N.Y. 272", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 549428 ], "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ny/87/0272-01" ] }, { "cite": "107 N.E. 942", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "220 Mass. 333", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3463430 ], "opinion_index": 0, "case_paths": [ "/mass/220/0333-01" ] }, { "cite": "36 A.2d 739", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1915, "opinion_index": 0 }, { "cite": "130 Conn. 652", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1611445 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/conn/130/0652-01" ] }, { "cite": "29 F. Supp. 991", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4195334 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/f-supp/29/0991-01" ] }, { "cite": "120 Ill. App. 614", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5305291 ], "opinion_index": 0, "case_paths": [ "/ill-app/120/0614-01" ] }, { "cite": "328 Ill. 582", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5196776 ], "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill/328/0582-01" ] }, { "cite": "252 Ill. 300", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3440019 ], "year": 1928, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill/252/0300-01" ] }, { "cite": "402 Ill. 579", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2616867 ], "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0579-01" ] }, { "cite": "409 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310670 ], "year": 1949, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill/409/0046-01" ] }, { "cite": "106 Ill. 147", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2782669 ], "pin_cites": [ { "page": "149-50" } ], "opinion_index": 0, "case_paths": [ "/ill/106/0147-01" ] }, { "cite": "381 Ill. 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2558174 ], "year": 1883, "pin_cites": [ { "page": "108-09" } ], "opinion_index": 0, "case_paths": [ "/ill/381/0106-01" ] }, { "cite": "73 Ill. App. 3d 484", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3264613 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0484-01" ] } ], "analysis": { "cardinality": 733, "char_count": 14958, "ocr_confidence": 0.833, "pagerank": { "raw": 2.841408869049649e-07, "percentile": 0.8399451087688896 }, "sha256": "266df3ae616ec47dfcf00edf1924c654edd2c23378ad54f1470efe985ea892c0", "simhash": "1:83a57d96896dedf3", "word_count": 2482 }, "last_updated": "2023-07-14T20:05:09.345663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PETER BEJDA et al., Appellees, v. SGL INDUSTRIES, INC., et al., Appellants." ], "opinions": [ { "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court:\nOn December 13, 1972, plaintiff Peter Bejda was an employee of Goltra Industries, Inc., Barrington. He was operating a grinding machine when its grinding wheel disintegrated and pieces of the wheel struck him. On March 8, 1974, Bejda and his wife, Kazimera, filed suit for the injuries resulting therefrom, naming defendant Gerbing Manufacturing Company as one of several defendants.\nOn motion by Gerbing, alleging that plaintiffs failed to file a sufficient bill of particulars, the circuit court of Cook County dismissed plaintiffs\u2019 product liability action. The appellate court reversed and directed the circuit court to consider sanctions less drastic than dismissal. (73 Ill. App. 3d 484.) We allowed - Gerbing leave to appeal. Because of the nature of the issue presented, a detailed recitation of the facts and procedural history is necessary.\nPlaintiffs seek to hold Gerbing liable on the theories (1) that a component of the grinding machine, a so-called \u201cvariable pitch pulley and drive belt,\u201d was designed, manufactured and sold by Gerbing in an unreasonably dangerous defective condition which allowed the grinding wheel to spin at an excessively high rate of speed, thereby causing the wheel to disintegrate; and (2) that the component, as manufactured, was in an unreasonably dangerous defective condition because it contained no warning of its inability to control the speed of the wheel. Gerbing was not named as a defendant in plaintiffs\u2019 original complaint nor in either of plaintiffs\u2019 first two amended complaints but was added as a defendant in plaintiffs\u2019 third amended complaint, filed on December 12, 1974. On February 10, 1975, Gerbing moved to strike plaintiffs\u2019 third amended complaint, insofar as it related to Gerbing, for failure to state a cause of action. On February 26, the motion to strike was granted, and plaintiffs were allowed seven days to amend.\nOn March 17, 1975, plaintiffs were granted leave to file their fourth amended complaint instanter. On April 2, 1975, Gerbing again filed a motion to strike, alleging that plaintiffs\u2019 fourth amended complaint failed to apprise Gerbing of the nature of the alleged defect in its pulley and drive belt and that the complaint failed to allege that Gerbing manufactured the product in an unreasonably dangerous condition. In response to the motion to strike, plaintiffs explained that they had not yet obtained an expert\u2019s evaluation of Gerbing\u2019s pulley and drive belt so as to enable plaintiffs to describe the alleged defect in more specific, technical terms, and the court denied Gerbing\u2019s motion to strike.\nOn February 10, 1976, Gerbing filed a demand for a bill of particulars. It claims that it filed the demand because it had determined that plaintiffs\u2019 answers to Gerbing\u2019s interrogatories were insufficient and because plaintiffs had failed to comply with Gerbing\u2019s request for production of documents. The demand for a bill of particulars requested, inter alia, that plaintiffs \u201c[i] temize each defect in the \u2018drive system or installation\u2019 which permitted *** the grinding wheel to run at a speed in excess of tolerable limits and to disintegrate.\u201d The demand also asked that plaintiffs explain how they knew that Gerbing designed, manufactured and sold the drive system.\nOn February 18, 1976, the hearing on Gerbing\u2019s motion was continued to March 2, and though not appearing of record, Gerbing claims that this was done at the request of plaintiffs. On March 2, plaintiffs presented additional answers to Gerbing\u2019s interrogatories and a response to the request for production of documents, and the motion was thereupon continued to March 18 to enable Gerbing to assess the sufficiency of the materials presented.\nOn March 15, 1976, Gerbing sent plaintiffs a letter requesting production of certain items and reminding plaintiffs that they had not responded to Gerbing\u2019s demand for a bill of particulars. To allow plaintiffs time to respond to the letter, the hearing on Gerbing\u2019s motion to dismiss was continued to April 15.\nThe motion did not appear on the court call for April 15 and was rescheduled for April 26. Defendant did not present its motion on the latter date, and it claims that it did not do so because of the representations of plaintiffs that they would respond to the production request and the demand for a bill of particulars within 21 days after April 26.\nWhen Gerbing received no further response, it again filed a motion to dismiss on June 9, 1976, for plaintiffs\u2019 failure to supply the requested bill of particulars and documents. The motion was entered and continued to June 23, and when plaintiffs\u2019 attorney failed to appear that day, Gerbing\u2019s motion to dismiss was granted.\nOn June 29, 1976, plaintiffs\u2019 attorney moved to vacate the June 23 order of dismissal, explaining that he was detained on another matter that day and arrived in court 15 minutes late and found the order of dismissal already had been entered. The motion to vacate the order of dismissal was granted.\nAlso on June 29, 1976, plaintiffs filed a response to Gerbing\u2019s demand for a bill of particulars. Plaintiffs stated therein that the pulley and drive belt in question has a nameplate with the name \u201cGerbing\u201d on it; that plaintiffs were informed, and the nameplate would indicate, that Gerbing designed, manufactured and sold that pulley and drive belt; that the pulley-and-drive-belt system was defective in that it allowed the grinding wheel to spin at an excessive rate of speed, thereby causing the wheel to disintegrate; that the exact nature of the defect which caused the wheel to run out of control was then unknown; and that the pulley-and-drive-belt system was also defective because of the absence of a warning that the wheel would spin at an excessive rate of speed. Gerbing felt that plaintiffs\u2019 response failed to establish a relationship between the grinding wheel and Gerbing\u2019s manufacture and sale of the pulley and drive belt, and it moved for an order striking plaintiffs\u2019 bill as nonresponsive. The motion was granted on July 26, 1976, and plaintiffs were granted 5 6 days in which to file an amended bill.\nOn January 31, 1977, Gerbing moved to dismiss, alleging the failure of plaintiffs to file an amended bill. The court denied the motion and granted plaintiffs an additional 14 days to file an amended bill, and the matter was continued to February 16. For reasons which do not appear of record, the court heard the motion on February 15 rather than the 16th, and it dismissed plaintiffs\u2019 action as against Gerbing. Upon being informed of the court\u2019s February 15 order of dismissal, plaintiffs moved to vacate the order, alleging (1) that the order was entered without notice to them, since the matter was not scheduled for that day; and (2) that their complaint stated a cause of action against Gerbing, and the alleged defect could not be further particularized. On March 3, the court granted plaintiffs\u2019 motion to vacate and allowed plaintiffs 84 days to file an amended bill. In its order, the court stated that it would not entertain further requests by plaintiffs for extensions.\nOn September 26, 1977, Gerbing filed a motion to dismiss with prejudice because plaintiffs had not yet filed an amended bill of particulars. Although Gerbing therein alleged prior difficulties in obtaining discovery from plaintiffs, it prayed for dismissal only on the ground that plaintiffs failed to file an amended bill. The court granted plaintiffs 14 days to file an amended bill, and on October 11 plaintiffs refiled the bill previously stricken. On October 12, the court entered an order stating that plaintiffs had failed to comply with the court\u2019s previous order to file an amended bill, and it set Gerbing\u2019s motion to dismiss for hearing on October 14. On that day, the court granted the motion to dismiss and certified the case for appeal. Since the court\u2019s order does not specify otherwise, we assume, as Rule 273 requires, that the court intended the dismissal to operate as an adjudication upon the merits, i.e., with prejudice. 73 Ill. 2d R. 273.\nThe sole issue presented is whether the circuit court was authorized in dismissing plaintiffs\u2019 complaint with prejudice as a sanction for the failure to provide a sufficient bill of particulars. Gerbing argues initially that such a dismissal is authorized by section 37 of the Civil Practice Act. We do not agree. That section provides:\n\u201cIf the party unreasonably neglects to furnish a bill of particulars, or if the bill of particulars delivered is insufficient, the court may in its discretion strike the pleading, allow further time to furnish the bill of particulars or require a more particular bill to be delivered.\u201d (Ill. Rev. Stat. 1977, ch. 110, par. 37(2).)\nUnder the section, the most severe sanction authorized is the striking of the pleading to which the bill of particulars relates. A dismissal of a complaint, as in the present case, cannot be equated with a striking of that pleading, since there exists \u201ca marked difference between an order striking a case from the docket, which is not final [citation] and an order dismissing the suit *** \u201d (Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 108-09). This distinction is a substantial one and a distinction that has long been recognized in Illinois. In Frederick v. Connecticut River Savings Bank (1883), 106 Ill. 147, 149-50, the court held that no appeal or writ of error would lie from the striking of a bill in equity, and the court there stated:\n\u201cIf it be said that the order striking the \u2018suit\u2019 from the docket is *** a final order, it may be answered that such order concluded no one or any thing. On a proper application the cause could be reinstated, and progress to a final hearing and decree. And were plaintiff in error to file a bill similar to this, can any one suppose that the order under consideration could be pleaded to bar a recovery? Surely not, because there has been no trial on the merits, either on demurrer or proofs. There must be a final hearing before the decree can be pleaded as a bar. The striking of the case from the docket was not the equivalent of dismissing the bill for the want of equity. \u201d\n(See also Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49; Calkin v. Roberts Park Fire Protection District (1949), 402 Ill. 579, 580.) We therefore conclude that section 37 does not authorize the dismissal of a complaint.\nAlthough the circuit court\u2019s dismissal of plaintiffs\u2019 action is not authorized by section 37, the dismissal could nonetheless be upheld as within the court\u2019s inherent authority to control its business. A plaintiff\u2019s failure to take any action as ordered by the court evidences want of prosecution by that party (Leonard v. Garland (1911), 252 Ill. 300, 303), and as the court said in Epley v. Epley (1928), 328 Ill. 582, 585, \u201cThe trial court may dismiss a suit for failure of complainant to prosecute it with due diligence where no sufficient cause is presented, and this power exists independent of any statute.\u201d It has therefore been recognized by various authorities, including our appellate court (American Rolling Mill Corp. v. Ohio Iron & Metal Co. (1904), 120 Ill. App. 614), that \u201ca failure to file *** a bill [of particulars] in disobedience of the order of the court may be a ground [for dismissal] within the sound discretion of the court.\u201d (27 C.J.S. Dismissal & Nonsuit sec. 64, at 425 (1959), citing Botkins v. Sorter (W.D. La. 1939), 29 F. Supp. 991, McCarthy v. Thames Dyeing & Bleaching Co. (1944), 130 Conn. 652, 36 A.2d 739; Nickerson v. Glines (1915), 220 Mass. 333, 107 N.E. 942.) In some instances, dismissal is authorized by statute or rule as in the McCarthy and Nickerson cases above cited, but the authority to dismiss for failure to provide a bill of particulars is also an authority recognized at common law to be inherent in the courts. (Gross v. Clark (1881), 87 N.Y. 272, 276.) Section 37 of the Civil Practice Act does not purport to expressly limit this common law authority, and we therefore find unchallenged the idea that the authority is viable.\nNotwithstanding the general authority of the court to dismiss an action, we conclude that dismissal of plaintiffs\u2019 action was not proper. A bill of particulars need not \u201cstate more than the party is bound to prove\u201d (71 C.J.S. Pleading sec. 398, at 831 (1951)), and in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, the court said that plaintiffs in a product liability case \u201cmust prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer\u2019s control.\u201d As our appellate court has said, \u201cThis language does not indicate that proof of the specific defect which causes the product to be in an unreasonably dangerous condition is necessary.\u201d (Bollmeier v. Ford Motor Co. (1970), 130 Ill. App. 2d 844, 849. See also Erzrumly v. Dominick\u2019s Finer Foods, Inc. (1977), 50 Ill. App. 3d 359, 363; Frisch v. International Harvester Co. (1975), 33 Ill. App. 3d 507, 515.) \u201cA prima facie case that a product was defective and that the defect existed when it left the manufacturer\u2019s control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed \u2018to perform in the manner reasonably to be expected in light of [its] nature and intended function.\u2019 (See Annot., 51 A.L.R.3d 8 (1973); Rhinegold, Proof of Defect in Product Liability Cases, 38 Tenn. L. Rev. 325, 337 (1971).)\u201d (Tweedy v.Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 574.) These matters may be proved inferentially, whether by direct or circumstantial evidence. (64 Ill. 2d 570, 575.) We therefore conclude that the circuit court abused its discretion by ordering plaintiffs to \u201cpositively\u201d state the defect in Gerbing\u2019s pulley and drive belt. If plaintiffs wish to do so, they may attempt to prove their case by inference. Henningsen v. Bloomfield Motors, Inc. (1960), 32 N.J. 358, 410, 161 A.2d 69, 97-98.\nFor the foregoing reasons, the judgment of the appellate court is affirmed insofar as it reversed the circuit court\u2019s order of dismissal, and it is reversed insofar as it remanded the cause for the imposition of a lesser sanction. The order of the circuit court is reversed, and the cause is remanded to that court for further proceedings.\nAppellate court affirmed in part and reversed in part; circuit court reversed; cause remanded.", "type": "majority", "author": "MR. JUSTICE KLUCZYNSKI" } ], "attorneys": [ "Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas R. Nelson, Edward J. Zulkey, and Richard H. Donohue, of counsel), for appellant Gerbing Manufacturing Corporation.", "Joseph M. Tobias & Associates, Ltd., of Chicago (Joseph M. Tobias, of counsel), for appellees." ], "corrections": "", "head_matter": "(No. 52386.\nPETER BEJDA et al., Appellees, v. SGL INDUSTRIES, INC., et al., Appellants.\nOpinion filed September 15, 1980.\nRehearing denied November 26, 1980.\nBaker & McKenzie, of Chicago (Francis D. Morrissey, Thomas R. Nelson, Edward J. Zulkey, and Richard H. Donohue, of counsel), for appellant Gerbing Manufacturing Corporation.\nJoseph M. Tobias & Associates, Ltd., of Chicago (Joseph M. Tobias, of counsel), for appellees." }, "file_name": "0322-01", "first_page_order": 334, "last_page_order": 343 }