Elfman v. Evanston Bus Co.

• Decision Date: 25 March 1963
• Docket Number: No. 37527,37527
• Citation: 190 N.E.2d 348,27 Ill.2d 609
• Parties: Sarah ELFMAN, Appellee, v. EVANSTON BUS COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 348

190 N.E.2d 348

27 Ill.2d 609

Sarah ELFMAN, Appellee, v. EVANSTON BUS COMPANY, Appellant.

No. 37527.

Supreme Court of Illinois.

March 25, 1963.

As Modified on Denial of Rehearing May 29, 1963.

Stephen Love, Chicago, for appellant.

SOLFISBURG, Chief Justice.

This appeal stems from an order of the municipal court of Evanston denying defendant's amended petition, filed 30 days after judgment time under section 72 of the Civil Practice Act, Ill.Rev.Stat.1961, c. 110, § 72, to vacate a $10,000 default judgment. The Appellate Court, after finding that defendant's counsel had been guilty of inexcusable neglect in failing to present a defense, affirmed the order of the trial court. (Elfman v. Evanston Bus Co., 36 Ill.App.2d 469, 184 N.E.2d 787.) We have granted defendant's petition for leave to appeal in order to further review the matter, and it may be stated at the outset that we are fully in accord with so much of the opinion of the Appellate Court which holds, first, that the issues on appeal are confined to those raised by defendant's amended petition, as amended, thus rendering superfluous and irrelevant plaintiff's arguments based on defendant's original, or superseded petition, and, second, that plaintiff's motion to strike the amended petition must be taken to have admitted all well-pleaded allegations of fact. (See: 36 Ill.App.2d 469, at 473, 184 N.E.2d 787, at 789.) The issue presented is whether the amended petition and its supporting exhibits and affidavits, not denied and therefore taken as true, adequately set forth sufficient facts to show that the trial court abused its discretion in denying the petition.

Facts derived from the amended petition show that on September 6, 1958, the plaintiff, Sarah Elfman, while a passenger on a bus owned and operated by defendant, the Evanston Bus Company, was injured in a collision between the bus and a struck of the Wanzer Dairy Company. Later in the month she was exaimed by an orthopedic specialist, (to whom she gave a history of having been thrown with great force against a seat when a bus, in which she was standing, stopped suddenly,) and it was the doctor's diagnosis that she was suffering from (1) a whiplash injury superimposed on preexisting osteoarthritic changes, and (2) lumbrosacral strain superimposed on preexisting osteoarthritis. On October 21, 1958, plaintiff's attorney sent a copy of the orthopedist's report to defendant's attorney along with a letter expressing a desire that the matter be settled amicably. Later, in August, 1959, plaintiff's counsel wrote a letter referring to a prior telephone conversation and making a formal demand of settlement in the amount of $4500. The matter was next discussed by counsel over the telephone on September 1, 1959, at which time plaintiff's counsel represented that his client's medical bills totalled $259, and enumerated the bills included in such figure. Defendant's counsel, in turn, advised that he felt the settlement demand of $4500 was too high in view of the small amount of special damages.

Thereafter, on March 7, 1960, plaintiff's counsel initiated the present action in the municipal court of Evanston naming the bus company and Wanzer Dairy as defendants, and both were duly served with summons returnable March 22, 1960. Defendant, in accordance with its usual practice, sent its summons to its general counsel, the attorney who had been negotiating settlement. Neither defendant had filed an appearance by March 22 and, on that date, a default order was entered against both. In defendant's amended petition it is alleged that its counsel was preoccupied at the time with the fatal illness of his mother who succumbed from cancer on March 24, 1960, two days after the summons return date. Further, the petition alleges that counsel's mother had been seriously ill since December 1, 1959 having been hospitalized and operated on, that he was in daily attendance on his mother, and that she lapsed into an intermittent coma on March 12, 1960, which lasted until her death, all of which produced nervous and mental strain on counsel and distracted him from his normal practice of law.

On April 23, 1960, as the result of a stipulation between plaintiff and Wanzer, the default order was vacated as to Wanzer and the latter permitted to file its appearance and answer instanter. At the same time it was ordered that 'this cause be and the same is hereby postponed and set for pretrial conference on July 22, 1960.' Defendant's amended petition alleges that while its attorney was in the court on another matter shortly after April 23, 1960, he examined the docket in the clerk's office, noted the date set for the pretrial conference and later marked such date on a trial calendar maintained in his office, relying upon the entry in the clerk's docket as assurance that the matter could not be tried before July 22, 1960. Again, the petition alleges that the strain produced by his mother's death and the burdens placed upon him, caused counsel to overlook that he had not filed defendant's formal appearance.

The next events occurred on May 18, 1960, two months before the date set for pretrial conference, when, on plaintiff's stipulation and motion, an order was entered dismissing the cause as to Wanzer. On the same day, while a visiting county judge was sitting on the bench, and without notice to defendant, a jury was empaneled and after hearing evidence and argument on plaintiff's behalf, returned a verdict against defendant for $10,000, upon which judgment was entered. Defendant's amended petition alleges that its counsel, a member of the legislature, was on May 18, 1960, and for several days prior and subsequent thereto, in Springfield, Illinois, attending a special session of the legislature. Further, the petition alleges that at the ex parte trial on May 18, 1960, plaintiff introduced into evidence bills for hospital and medical expenses totalling $4,028.25, a portion of which were for services in connection with an operation for the...