{ "id": 5179368, "name": "Ralph R. Seaburg, Plaintiff-Appellant, v. LaMont Williams, Defendant-Appellee", "name_abbreviation": "Seaburg v. Williams", "decision_date": "1958-02-11", "docket_number": "Gen. No. 11,083", "first_page": "295", "last_page": "307", "citations": [ { "type": "official", "cite": "16 Ill. App. 2d 295" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "279 P.2d 1091", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "1095" } ], "opinion_index": 0 }, { "cite": "46 Wash.2d 197", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5029898 ], "opinion_index": 0, "case_paths": [ "/wash-2d/46/0197-01" ] }, { "cite": "332 Ill. App. 618", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5043901 ], "opinion_index": 0, "case_paths": [ "/ill-app/332/0618-01" ] }, { "cite": "405 Ill. 555", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2629239 ], "opinion_index": 0, "case_paths": [ "/ill/405/0555-01" ] }, { "cite": "253 P.2d 675", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "116 Cal.App.2d 310", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2244937 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/116/0310-01" ] }, { "cite": "42 Am. St. Rep. 743", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "26 L. R. A. 153", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "38 N. E. 449", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "450" } ], "opinion_index": 0 }, { "cite": "143 N. Y. 442", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2262375 ], "opinion_index": 0, "case_paths": [ "/ny/143/0442-01" ] }, { "cite": "261 N. W. 211", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "218 Wis. 381", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8691274 ], "opinion_index": 0, "case_paths": [ "/wis/218/0381-01" ] }, { "cite": "84 Am. Dec. 741", "category": "reporters:federal", "reporter": "Am. Dec.", "year": 1863, "opinion_index": 0 }, { "cite": "17 Wis. 230", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8708799 ], "weight": 2, "year": 1863, "opinion_index": 0, "case_paths": [ "/wis/17/0230-01" ] }, { "cite": "189 Ill. App. 435", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2907016 ], "opinion_index": 0, "case_paths": [ "/ill-app/189/0435-01" ] }, { "cite": "326 Ill. App. 542", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4942629 ], "opinion_index": 0, "case_paths": [ "/ill-app/326/0542-01" ] }, { "cite": "113 Ill. App. 435", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 872919 ], "opinion_index": 0, "case_paths": [ "/ill-app/113/0435-01" ] }, { "cite": "222 Ill. App. 118", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5472384 ], "opinion_index": 0, "case_paths": [ "/ill-app/222/0118-01" ] }, { "cite": "150 Ill. 97", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5472299 ], "opinion_index": 0, "case_paths": [ "/ill/150/0097-01" ] }, { "cite": "131 Ill. 474", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5418326 ], "opinion_index": 0, "case_paths": [ "/ill/131/0474-01" ] }, { "cite": "198 Ill. 297", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 845338 ], "opinion_index": 0, "case_paths": [ "/ill/198/0297-01" ] }, { "cite": "414 Ill. 210", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314560 ], "opinion_index": 0, "case_paths": [ "/ill/414/0210-01" ] }, { "cite": "318 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5150783 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/318/0142-01" ] }, { "cite": "196 Ill. 410", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 841263 ], "opinion_index": 0, "case_paths": [ "/ill/196/0410-01" ] }, { "cite": "229 Ill. App. 36", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3074620 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-app/229/0036-01" ] }, { "cite": "268 Ill. App. 1", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3329550 ], "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-app/268/0001-01" ] }, { "cite": "59 Ill. 51", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5231736 ], "opinion_index": 0, "case_paths": [ "/ill/59/0051-01" ] }, { "cite": "38 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 428269 ], "opinion_index": 0, "case_paths": [ "/ill/38/0145-01" ] } ], "analysis": { "cardinality": 1033, "char_count": 22398, "ocr_confidence": 0.524, "pagerank": { "raw": 2.427887208067184e-07, "percentile": 0.8017114125186449 }, "sha256": "d721b29cb73f35721c0b671808da551bf6421bd6f1a87ec5efd360974f470216", "simhash": "1:ac7a107aaf20bbdc", "word_count": 3838 }, "last_updated": "2023-07-14T20:24:43.680417+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CROW, P. J. and WRIGHT, J., concur." ], "parties": [ "Ralph R. Seaburg, Plaintiff-Appellant, v. LaMont Williams, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SOLFISBURG\ndelivered the opinion of the court.\nPlaintiff filed a complaint against the defendant in the Circuit Court of Winnebago county, Illinois, which consisted of four counts. In Count I plaintiff alleged the following: Plaintiff, on January 13, 1956, owned and occupied a certain single family dwelling and two-car frame garage in the City of Rockford. In his garage plaintiff kept a number of listed items of personal property of the fair cash value of $1,202.90. On January 13, 1956, defendant, then of the age of five (5) years and eleven (11) months, \u201ctortiously and wrongfully\u201d set fire to plaintiff\u2019s garage causing the garage and contents to be burned and destroyed. As a result of the fire the plaintiff was compelled to expend $2,165 to rebuild and restore the garage and suffered the loss of all the contents of the garage valued at $1,202.90. Plaintiff prayed damages in the total amount of $3,367.90 for damage to building and loss of personal property in the garage, plus costs of suit.\nCount II repeated all the allegations in Count I, but included an additional allegation which asserted that on the date in question defendant\u2019s father had in force a comprehensive general liability policy of Commercial Insurance Company of Newark, New Jersey (a copy of which was attached to the complaint), protecting the insured, including the defendant, from property damage claims up to $50,000 and further, that plaintiff agreed to look only to the insurance company for satisfaction of any judgment secured.\nCount III alleged substantially tbe same facts as Count I, omitting, however, an allegation that tbe fire was \u201ctortiously and wrongfully\u201d set, but merely asserting that defendant set fire to plaintiff\u2019s garage, that by reason of plaintiff\u2019s necessary expenditures to restore and replace bis property, tbe defendant became indebted to plaintiff in tbe sum of $3,367.90.\nCount IY repeated and realleged tbe paragraphs contained in Count III, but added a paragraph setting forth tbe fact of insurance just as alleged in Count II, and plaintiff again agreed to look only to tbe insurance carrier for satisfaction of any judgment.\nDefendant filed a motion to strike tbe four counts of plaintiff\u2019s second amended complaint on tbe ground that tbe counts were \u201cwholly insufficient in law or fact to state a cause of action against defendant.\u201d After argument, tbe trial judge granted tbe defendant\u2019s motion. Plaintiff elected to stand by tbe complaint and thereupon a final judgment was entered against plaintiff and for defendant. Prom that judgment plaintiff perfected this appeal.\nAn examination of tbe plaintiff\u2019s amended complaint reveals that be advances what appear to be four theories of recovery. Count I sounds in tort (\u201ctortiously and wrongfully\u201d). Count II also alleges tbe same tortious conduct on tbe part of tbe defendant, but refers to tbe insurance coverage to which plaintiff agrees to look for a recovery. Neither Count I nor Count II, which use tbe words \u201ctortiously and wrongfully,\u201d are based upon negligence on defendant\u2019s part as they do not accuse him of negligence, carelessness or failure to exercise any duty of care toward plaintiff. In short tbe tort alleged must be considered to have been an intentional or non-negligent one.\nCount III alleges tbe same facts as Count I and Count II, but alleges a cause of action sounding in assumpsit (quasi contract) for tbe property destroyed. Count IY also sounds in assumpsit or quasi-contract for the property loss sustained by defendant\u2019s setting fire to the plaintiff\u2019s property; however, it contains an additional paragraph alleging the liability insurance policy purchased by defendant\u2019s father.\nPlaintiff in his brief contends that an action for tortious damage to property may be maintained in Illinois against a child of almost six years of age; that at common law all persons of whatever age were subject to tort liability, and by Illinois statute the common law is considered as of full force until repealed by legislative authority. Plaintiff also urges that he has an action in quasi-contract against a minor of the age of six years. An additional argument which plaintiff advances is that the policy of insurance protects the defendant child\u2019s estate, thereby eliminating any reason for granting the child immunity for his torts or quasi-contractual debts.\nDefendant maintains that the complaint was properly dismissed because there can be no cause of action for tortious damage to property by a child under the age of seven years. Defendant argues that in Illinois there is a conclusive presumption that a child under seven years of age is incapable of such conduct as will constitute contributory negligence; that based on such a conclusive presumption with reference to contributory negligence, the courts in Illinois have impliedly extended that conclusive presumption to negligence of a minor defendant and even to his non-negligent tortious conduct; that accordingly the defendant as a matter of law cannot be liable for the results of his setting fire to plaintiff\u2019s garage.\nThe principal issue, therefore, before us is whether a cause of action for such a non-negligent tort or pure tort, as it is sometimes called, may be maintained in Illinois against a minor of the age of six years. The parties agree that there are no decisions of any court of review in Illinois on this precise issue.\nTwo early decisions of the Supreme Court of Illinois contain dicta to the effect that infants are liable for their torts (Davidson v. Young, 38 Ill. 145; Wilson v. Garrard, 59 Ill. 51). Similar dictum is found in an opinion of this court (Hunter v. Egolf Motor Co., 268 Ill. App. 1, 4) and of other appellate courts (Reed v. Kabureck, 229 Ill. App. 36, 40). These precedents are of little assistance here since their facts are so markedly different from the facts in the instant case.\nWe point out again that no count of plaintiff\u2019s second amended complaint is based on negligence. Defendant cites the following cases as being determinative of the issue on appeal: Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142; Crutchfield v. Meyer, 414 Ill. 210; Illinois Cent. R. Co. v. Jernigan, 198 Ill. 297; Chicago West Division Ry. Co. v. Ryan, 131 Ill. 474; Village of Clayton v. Brooks, 150 Ill. 97; O\u2019Connell v. Yellow Cab Co., 222 Ill. App. 118; United States Brewing Co. v. Stoltenberg, 113 Ill. App. 435; Moser v. East St. Louis & Interurban Water Co., 326 Ill. App. 542; DeVine v. Chicago Rys. Co., 189 Ill. App. 435. Upon examination we find that these are all cases involving the question of contributory negligence of a minor plaintiff and the conclusive presumption with regard thereto which Illinois follows in the case of minors below the age of seven years. There is nothing in the cases cited by defendant which would require or even justify extending this conclusive presumption to intentional or non-negligent conduct of a minor defendant. Contributory negligence involves the question of a standard of care, while no such question is a material consideration in the case of non-negligent torts. Accordingly, we are not persuaded by defendant\u2019s contributory negligence cases that the common law in Illinois bars a cause of action in pure tort against a minor below the age of seven years.\nThe legislature has provided by statute that an infant under the age of ten years shall not be found guilty of any crime or misdemeanor (Ill. Rev. Stats. 1955, Ch. 28, \u00a7 591), but that statutory provision has never been construed to apply to tortious conduct. The Supreme Court of this state has definitely decided that a child under the age of seven years is incapable of such conduct as will constitute contributory negligence ; that between the ages of seven and fourteen the question of contributory negligence of a child is an open question of fact and must be left to the jury to determine taking into consideration the age, capacity, intelligence and experience of the particular child and that when a \"child has attained the age of fourteen years he is held to the same degree of care for his own safety which is required of an adult, his age and experience being considered, (See e.g. Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142). But again these decisions involve contributory negligence.\nIt thus appears that so far as the courts in Illinois are concerned, the issue before us brings us to waters still uncharted. Since by statute in Illinois (Ill. Rev. Stats. 1955, Ch. 28, \u00a7 1) the common law shall be the rule of decision in the absence of legislation to the contrary, our inquiry must turn to the matter of tort liability of infants at common law.\nIn discussing the matter of legal capacity at common law to commit torts, the Restatement of Torts states (Comment a to \u00a7 887, pp. 467-68 (1939)):\n\u201cThe common law regards all persons of whatever age or physical condition as being subject to tort liability. There is in this respect no legal incapacity. Thus since the law imposes upon the owner or possessor of land a duty to have care used to prevent the land from being dangerous to persons upon an adjacent highway, a six months old insane owner of the land is as liable for harm caused to such persons by a condition which the exercise of care would have averted as if he were of full age and sound mind. Where a tort requires a particular state of mind, a person whose mental condition precludes its existence avoids liability, not because of legal incapacity, but because his conduct does not bring him within the rule upon which liability depends. Thus an idiot may be liable for a trespass to land which requires only an intent to enter (see \u00a7 164, Comment a, vol. I), while he may not have sufficient mind to be liable for a false imprisonment which requires an intent to imprison . . .\u201d\nTo the same effect is 27 Am. Jur., Infants \u00a7\u00a7 90, 91, which point out that:\n\u201cAlthough . . . the general rule applicable to contracts is that the infant may avoid liability thereon, the general rule in the law of torts is that he is absolutely liable. Liability of an infant in a civil action for his torts is imposed as a mode, not of punishment, but of compensation. If property has been destroyed or other loss occasioned by a wrongful act, it is just that the loss should fall upon the estate of the wrongdoer rather than on that of a guiltless person, and that without reference to the question of moral guilt. Consequently, for every tortious act of violence or other pure tort, the infant tort-feasor is hable in a civil action to the injured person in the same manner and to the same extent as an adult. It is frequently stated that an infant is hable for his torts generally where they have no basis in any contract relation, or that an infant is liable for his torts which are not connected with and do not arise out of contracts. Infancy, being in law a shield and not a sword, cannot be pleaded to avoid liability for frauds, trespasses, or torts. Thus, an infant is liable for injuries caused by his negligence.\n\u201cThe age of the infant is ordinarily immaterial, although there are some exceptions to this rule. A child of tender years may be held hable for acts of violence, and liability has often been imposed for' the injuries caused by such acts, although committed in play and without the intent to inflict substantial injury. Of course, if the injury was an accident, or the acts of the child were only the natural activity of friendly play, there is no liability.\n\u201c\u00a7 91. Liability as Affected by Mental Capacity.\u2014 The general rule that infants are responsible, like other persons, for their torts is subject to the qualification that the torts for which they are so liable must not involve an element necessarily wanting in their case. Their liability may be affected by their mentality. Thus, in the case of slander, malice is a necessary ingredient in the wrong. But the law presumes that an infant under the age of seven years is not doli capax. It is obvious, therefore, that in the case of slander an infant cannot be held liable for his tort until he arrives at that age or acquires that capacity which renders him morally responsible for his actions. . . .\u201d\nTo the same effect are Prosser on Torts (1941 ed.) Ch. 21, \u00a7 1085, pp. 1085-89, 43 C.J.S. Infants \u00a7 87, and 31 C.J. Infants, \u00a7 203, note 26, which point out that it is well settled that an infant is civilly liable for his torts unconnected or disconnected with his contract, unless in the commission of the tort there is required to exist some element which the infant is not presumed to possess.\nOne of the early leading cases in this country illustrative of the common law rule is Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 741 (1863). There plaintiff sued a six year old boy for trespass to land, alleging and proving that the defendant had broken and entered plaintiff\u2019s premises and destroyed his flowers and shrubs. The Supreme Court of Wisconsin opinion reads in pertinent part, pp. 231-2:\n\u201cInfants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts or frauds.\u201d 2 Kent\u2019s Com. 231.\n\u201cWhere a minor has committed a tort with force, he is liable at any age; for in case of civil injuries with force, the intention is not regarded; for in such case a lunatic is as liable to compensate in damages as a man in his right mind.\u201d Reeve\u2019s Com. Rel., 258.\nThe authorities cited by the counsel for the defendant in error have no bearing on the question. They relate to the criminal responsibility of infants; to the question of negligence on their part, as to whether it can be imputed to them so as to defeat actions brought by them to recover damages for personal injuries sustained in part in consequence of the negligence or unskilfulness of others; and to the liability of parents and guardians for wrongs committed by infants under their charge by reason of the neglect or want of proper care of such parents or guardians. The case at bar is none of these. The defendant is not prosecuted criminally; the action is not by him to recover damages for personal injury occasioned by the joint negligence of himself or his parents, and another; nor is the liability of the parents involved. The suit is brought to recover damages for a trespass committed by him; not vindictive or punitory damages, but compensation; and for that he is clearly liable. If damages by way of punishment were demanded, undoubtedly his extreme youth and consequent want of discretion would be a good answer.\nThe liability in tort of infants and insane persons has always been recognized to be parallel, Prosser on Torts (1941 ed.) Ch. 21, \u00a7 108, p. 1089. In a comparatively recent case involving tortious conduct similar to the conduct here alleged, the Wisconsin Supreme Court adopted reasoning which we regard as persuasive here. The case referred to is In re Guardianship of Meyer, German Mut. Fire Ins. Co. v. Meyer, 218 Wis. 381, 261 N. W. 211. There the defendant caused the destruction of a barn by fire. He was charged with the crime of arson, was found to be insane and committed to an insane asylum. Thereafter the insurance carrier which had paid the owner of the barn therefor took an assignment of the claim and sued the defendant. The jury by a special verdict assessed the damages, found the defendant was insane at the time of the fire, but also found that he did not intentionally set the fire. The latter finding being opposed to the uncontradicted evidence, the trial judge set aside the verdict and ordered a new trial. On appeal from that order, the Wisconsin Supreme Court reversed the lower court and ordered judgment for the plaintiff and against the defendant in the amount of the loss. In so holding, the Court commented, pp. 213-14:\n\u201cThe question of the civil liability of an insane person for his torts has seldom been presented to this court for its consideration. In Huchting v. Engel, by his Guardian, 17 Wis. 230, at page 231, 84 Amer. Dec. 741, which was an action involving the civil liability of an infant, in an action for compensatory damages for a trespass, we find the following quotation in the opinion by Chief Justice Dixon; \u2018Where the minor has committed a tort with force, he is liable at any age; for in case of civil injuries with force, the intention is not regarded; for in such a case a lunatic is as liable to compensate in damages as a man in his right mind.\u2019 \u201d\nIn Williams v. Hays, 143 N. Y. 442, at page 446, 38 N. E. 449, 450, 26 L. R. A. 153, 42 Am. St. Rep. 743, discussing the question of civil liability of an insane person, the court said:\n\u201cThe general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander, and malicious prosecution. In all other torts, intention is not an ingredient, and the actor is responsible, although he acted with a good and even laudable purpose, without any malice. The law looks to the person damaged by another, and seeks to make him whole, without reference to the purpose or the condition, mental or physical, of the person causing the damage. The liability of a lunatic for his torts, in the opinions of the judges, has been placed upon several grounds. The rule has been invoked that, where one or two innocent persons must bear a loss, he must bear it whose act caused it. . . . The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.\u201d . . .\nAn even more recent decision is Ellis v. D\u2019Angello, 116 Cal.App.2d 310, 253 P.2d 675, involving, among other things, the legal sufficiency of a count in a complaint alleging battery by a four-year-old boy. After reviewing the authorities which we have cited above, the court observed, p. 677:\n\u201cFrom these authorities and the cases which they cite it may be concluded generally that an infant is liable for his torts even though he lacks the mental development and capacity to recognize the wrongfulness of his conduct so long as he has the mental capacity to have the state of mind necessary to the commission of the particular tort with which he is charged. Thus as between a battery and negligent injury an infant may have the capacity to intend the violent contact which is essential to the commission of battery when the same infant would be incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.\u201d\nThe court concluded that whereas a negligence count against the four-year-old boy would be legally insufficient, the count for battery was sufficient, the court being unable to say that a boy of that age was incapable of intending the violent or harmful striking of another. Recognition of the wrongful character of the tort is immaterial, as the court noted.\nWithout subscribing perhaps to all that is contained in the various authorities cited, we are drawn to the conclusion that on the facts alleged in Count I of plaintiff\u2019s second amended complaint a cause of action is stated. The tort of setting fire to the building or property of another does not involve an element necessarily lacking in the case of a minor six years of age. Unless defendant was not capable of possessing the intent to do the act which he allegedly did, namely, set fire to plaintiff\u2019s garage, Count I must be regarded as legally sufficient. Without presuming to know all the capabilities or limitations of the mind of a six year old, nevertheless, we cannot say that a six-year-old child is incapable of intending to set fire to a building. Whether a six-year-old minor had such intent is a fact question, but so far as the sufficiency of the complaint is concerned, we hold Count I states a cause of action and the trial court erred in holding to the contrary.\nTurning to Count III, it is apparent that it is framed on the theory of quasi-contract or what under common law pleading was called the common counts (indebitatus assumpsit). See Edmunds Civil Practice Forms (1933 ed.), Vol. 1, Note 1, p. 503. In fact, Count III states a cause of action based on the same tort described in Count I, though with insignificant differences in language. Since Counts I and III both pertain to the same tort, and the common law forms of action are now abolished (Ill. Rev. Stats. 1955, Ch. 110, \u00a7 31), we find no error in the trial court\u2019s striking of Count III of the Second Amended Complaint.\nCounts II and IY allege the existence of insurance, and plaintiff argues that any immunity granted an infant for the consequences of his torts should be disregarded when the dissipation of his estate is thus rendered impossible. Plaintiff relies by analogy upon the tort immunity cases involving charitable institutions (Moore v. Moyle, 405 Ill. 555, and Wendt v. Servite Fathers, 332 Ill. App. 618). However, since solvency and financial position have never been considerations in the matter of infant tort liability, we do not regard the fact of insurance as material in a case of this kind. The Supreme Court of Washington has recently taken this same view (Garrett v. Dailey, 46 Wash.2d 197, 279 P.2d 1091, 1095). Accordingly, since the allegations concerning insurance are surplusage, we find no error in the striking of Counts II and IY, as they are then but repetitions of Count I.\nFor the foregoing reasons, we hold Count I of the Second Amended Complaint to be legally sufficient, while Counts II, III and IY which merely restate the same cause of action alleged in Count I were properly stricken. The judgment of the Circuit Court of Winnebago county is, therefore, reversed and the cause remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nCROW, P. J. and WRIGHT, J., concur.", "type": "majority", "author": "JUSTICE SOLFISBURG" } ], "attorneys": [ "Large, Reno, Zahm & Folgate (Ralph S. Zahm and Robert K. Skolrood, of counsel) for appellant.", "Maynard & Maynard, of Rockford (James F. Maynard, of counsel) for defendant-appellee." ], "corrections": "", "head_matter": "Ralph R. Seaburg, Plaintiff-Appellant, v. LaMont Williams, Defendant-Appellee.\nGen. No. 11,083.\nSecond District, Second Division.\nFebruary 11, 1958.\nReleased for publication February 28,1958.\nLarge, Reno, Zahm & Folgate (Ralph S. Zahm and Robert K. Skolrood, of counsel) for appellant.\nMaynard & Maynard, of Rockford (James F. Maynard, of counsel) for defendant-appellee." }, "file_name": "0295-01", "first_page_order": 323, "last_page_order": 335 }