See Bounougias v. Republic Steel Corp., 277 F.2d 726 (7th Cir 1960); also Parizon v. Granite City Steel Co., 71 Ill. App.2d 53, 218 N.E.2d 27 (1966) holding that a permanent part of a structure is not to be treated as a scaffold. Language to the contrary in Louis v. Barenfanger, Fifth District, No. 66-61, September 14, 1966, was eliminated from the Opinion as modified on rehearing, 81 Ill. App.2d 104, 226 N.E.2d 85 (1967). But see also 87 ALR2d 977, § 6.
[5, 6] The third amended complaint makes no reference to any of the prior complaints and, "for the purposes of the motion attacking it, is neither aided nor impaired by any prior pleading. . . . [T]he disposition of a motion to dismiss must be made upon the allegations contained in the complaint." (Louis v. Barenfanger, 81 Ill. App.2d 104, 108, 226 N.E.2d 85 (1967).) Therefore, we hold that plaintiff's prior complaints, the colloquy between court and counsel on the previous motions to strike and dismiss, and the alleged judicial admissions made in open court by plaintiff's counsel cannot be considered by this court in its determination of whether plaintiff's third amended complaint states a cause of action.
Sosa v. Central Power Light, 909 S.W.2d 893, 895 (Tex. 1995) (citing Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex. 1980)). Indeed, courts need not "give attention to the previous pleadings," where they have been superceded by an amended complaint. Brown Sheet Iron Steel Co. v. Maple Leaf Oil Refining Co., 68 F.2d 787, 788 (8th Cir. 1934); see also Louis v. Barenfanger, 81 Ill. App.2d 104, 226 N.E.2d 85 (Ill.Ct.App. 1966) (holding that parties are not aided by anything in a superceded pleading following amendment). In American Bonding Co. of Baltimore v. Morris, 104 Ark. 276, 148 S.W.2d 519, 522 (1912), the Supreme Court of Arkansas wrote that an amended complaint "took the place of the original complaint, which thereafter could not be considered a pleading in the case."
But where the facts alleged in a complaint on their face demonstrate that the plaintiff would never be entitled to recover, that complaint is properly dismissed. (See Miller v. DeWitt, 37 Ill.2d 273, 287; Louis v. Barenfanger, 81 Ill. App.2d 104, 110.) Such is the case before us.
He filed complaint against the general contractor, alleging violations of the Structural Work Act. (Ill. Rev. Stat. 1955, chap. 48, pars. 60 et seq.) On motion by defendant the third amended complaint was dismissed for failing to state a cause of action, and plaintiff appealed to the appellate court. That court reversed, remanding the cause for further proceedings ( 81 Ill. App.2d 104), and we have granted defendant's petition for leave to appeal. The question is whether the complaint alleges a cause of action under the statute. Section 1 of the Structural Work Act says "That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon."
To arrive at its conclusion that the plaintiffs could not prove Datacom received or retained the $3 fees, the trial court, responding to an argument made by Datacom and the decision in People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill.2d 1, 585 N.E.2d 51, found that Datacom only received up to 42% of the parking fines and not a percentage of the fees at issue. Whatever the source of the information upon which the trial court relied, suffice it to say that it was dehors the face of the complaint under attack and should not have been considered in ruling on Datacom's section 2-615 motion ( Mutual Tobacco Co. v. Halpin (1953), 414 Ill. 226, 111 N.E.2d 155; Louis v. Barenfanger (1966), 81 Ill. App.2d 104, 226 N.E.2d 85, aff'd (1968), 39 Ill.2d 445, 236 N.E.2d 724). In my view, when all of the well-pled facts alleged by the plaintiffs in count I of their amended complaint are taken as true and all reasonable inferences favorable to the plaintiffs are drawn from those facts, count I states a good and sufficient cause of action for unjust enrichment against Datacom.
On such facts, the complaint is properly dismissed as insufficient. See People ex rel. Fahner, 88 Ill.2d at 308, 430 N.E.2d at 1009; Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630; Louis v. Barenfanger (1966), 81 Ill. App.2d 104, 226 N.E.2d 85, aff'd (1968), 39 Ill.2d 445, 236 N.E.2d 724. • 4 Here, plaintiff has failed to sufficiently allege in his complaint the negligent sale of the "fireball red light" caused the unfortunate act to occur.
A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. ( Louis v. Barenfanger (1967), 81 Ill. App.2d 104, 226 N.E.2d 85.) The Structural Work Act provides, inter alia, that the party seeking to be covered under the Act must show he was employed in, or passing under or by, a structural activity. (Ill. Rev. Stat. 1985, ch. 48, par. 60.) It is obvious from the facts of this case that Rowe is not a party who may enjoy the benefits of this statute, and we decline to disturb the trial court's decision dismissing this count of the complaint for failing to state a cause of action.
We may not test the sufficiency of the complaint by reference to evidentiary matters that may be elsewhere of record, such as depositions, affidavits, answers to interrogatories or other discovery materials. ( Janes v. First Federal Savings Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605; Mutual Tobacco Co. v. Halpin (1953), 414 Ill. 226, 111 N.E.2d 155; O.K. Electric Co. v. Fernandes (1982), 111 Ill. App.3d 466, 444 N.E.2d 264; Louis v. Barenfanger (1967), 81 Ill. App.2d 104, 226 N.E.2d 85.) We have included these remarks and citations because the parties have used factual matters from affidavits, answers to interrogatories and depositions in addressing arguments to the sufficiency of the complaint.
In any event, the trial court entered no specific findings from which we could infer that it relied upon Gerber's deposition to justify its ruling. If the court had done so it would have been improper upon a dismissal motion based on section 45 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 45). ( Louis v. Barenfanger (1967), 81 Ill. App.2d 104, 226 N.E.2d 85) We find that Gerber adequately pleaded the defense of want of consideration. • 2, 3 His claim of economic duress also merited an evidentiary hearing.