Jarmon v. Jinks

• Decision Date: 31 December 1987
• Docket Number: No. 86-3292,86-3292
• Parties: , 117 Ill.Dec. 432 Mary JARMON, Plaintiff-Appellee, v. Randal JINKS and Checker Taxi Company, Inc., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 783

520 N.E.2d 783

165 Ill.App.3d 855, 117 Ill.Dec. 432

Mary JARMON, Plaintiff-Appellee, v. Randal JINKS and Checker Taxi Company, Inc., Defendants-Appellants.

No. 86-3292.

Appellate Court of Illinois,

First District, Fourth Division.

Dec. 31, 1987.

Jesmer and Harris, Chicago (Allen L. Wiederer, of counsel), for defendants-appellants.

Griffin & Griffin, Ltd., Chicago (Rhoda E. Markovitz, David J. Griffin, of counsel), for plaintiff-appellee.

Justice JOHNSON delivered the opinion of the court:

This appeal arises from a personal injury suit filed by plaintiff, Mary Jarmon. Defendant, Randal Jinks, filed a motion to dismiss plaintiff's lawsuit, pursuant to Supreme Court Rule 103(b) (107 Ill.2d R. 103(b)), for her failure to exercise reasonable diligence to obtain service of summons upon him. The motion was denied and judgment was entered against defendants Jinks and Checker Taxi Company.

Defendants appeal, raising the following issues: (1) whether the trial court erred in denying defendant Jinks' motion to dismiss this lawsuit, pursuant to Supreme Court Rule 103(b); (2) whether the trial court erred in barring the testimony of their medical expert pursuant to Supreme Court Rule 220 (107 Ill.2d R. 220); (3) whether they were deprived of a fair trial by the comment of plaintiff's counsel regarding their failure to provide testimony by their medical expert; (4) whether the trial court committed error by allowing plaintiff's treating physician to testify about X-rays, when such X-rays were not available in court for cross-examination; and (5) whether the trial court coerced the jury to reach a verdict. We affirm.

The record shows that on August 20, 1977, while plaintiff Jarmon was driving her automobile westbound on 78th street in Chicago, Illinois, she collided with a taxicab being driven northbound by defendant Jinks. The cab was owned by Checker Taxi Company, Inc. (hereinafter Checker). On May 8, 1979, plaintiff filed a lawsuit against Jinks and Checker. At the time plaintiff filed her lawsuit, she caused a summons to be issued, directed at both defendants. On June 5, 1979, summons was served by the sheriff on Checker.

In an effort to locate Jinks, plaintiff's attorney checked the following sources: U.S. Post Office; Chicagoland telephone directories and information service; and the Secretary of State. A process server was also hired to locate Jinks. Additionally, interrogatories were directed to Checker inquiring as to Jinks' address. Checker did not provide Jinks' address and failed to produce him for deposition as requested. After all the above proved fruitless, on November 14, 1980, plaintiff caused an alias summons to be issued on defendant Jinks. The alias summons was returned "not found" by the sheriff of Cook County. On March 27, 1981, plaintiff had a second alias summons issued which directed the sheriff to serve Jinks at an Aurora address, which was obtained through the Secretary of State. On April 16, 1981, the second alias was returned "not found" by the sheriff of Kane County. The former process server made three more visits to the Aurora address until it was learned Jinks did not reside there. Thereafter, on October 8, 1982, plaintiff caused Jinks to be served through the Secretary of State.

On December 29, 1982, Jinks filed a motion to dismiss the lawsuit as to him, pursuant to Rule 103(b) for failure of plaintiff to exercise reasonable diligence to obtain service upon him. Plaintiff filed a response to the motion which was verified by her attorney. The court heard arguments on the motion and on January 3, 1983, the court entered an order denying the motion to dismiss. On January 5, 1983, Jinks filed his answer to the complaint.

At trial, plaintiff testified that shortly after the accident she was taken to the emergency room of St. Bernard's Hospital where she complained of neck and back pain. However, she conceded that during discovery deposition she had only complained about her neck. She was released after X-rays were taken and examined. The following day plaintiff was admitted to Franklin Boulevard Hospital where she received treatment from Dr. Leo Miller for neck and leg pain. After her release on September 2, 1977, plaintiff continued to receive weekly heat treatments on her hip and neck from Dr. Miller.

From October 31 to November 10, 1978, plaintiff was hospitalized at Bethany Methodist Hospital under the care of Dr. Felzardo Belga. Plaintiff again complained of suffering from pain in her hip and legs. Dr. Belga ordered X-rays to be taken of plaintiff's hip and legs. The X-rays had been destroyed by hospital personnel and were not available at trial. Dr. Belga testified, over defendants' objection, that the radiology reports indicated that plaintiff had a condition of fragmentation and sclerosis of the left hip joint. Based upon his examination of plaintiff and the X-ray report, Dr. Belga diagnosed plaintiff as afflicted with aseptic necrosis of the left hip joint which was caused by the trauma she sustained in the automobile accident.

Following closing arguments of counsel and instructions by the court, the jury retired to deliberate at about 3:45 p.m.. At about 8:25 p.m., the jury sent the following written inquiry to the court: "What is a hang [sic ] jury?" The trial judge called the jury into the courtroom and read to them the deadlock instruction. The jury was then sent back for further deliberation. Defense counsel moved for a mistrial; the motion was denied. At 9 p.m., the jury returned a verdict in favor of plaintiff in the sum of $80,000.

I.

Defendant Jinks contends that the trial court erred in denying his motion to dismiss this lawsuit as to him, pursuant to Supreme Court Rule 103(b) for failure of plaintiff to exercise reasonable diligence in obtaining service of summons upon him. Defendant claims that almost 17 months elapsed from the expiration of the initial summons before plaintiff issued the first alias summons. After the first alias was returned not found, the plaintiff waited 4 months before causing a second alias summons to issue. After the second alias was returned not found, plaintiff did not cause any further alias summonses to issue.

Defendant Jinks relies on Mosley v. Spears (1970), 126 Ill.App.2d 35, 261 N.E.2d 510, and Penrod v. Sears, Roebuck & Co. (1986), 150 Ill.App.3d 125, 103 Ill.Dec. 346, 501 N.E.2d 367, to support his contention. In Mosley the court held that the plaintiff failed to comply with Rule 103(b) by not serving summons upon defendant until 13 months after the lawsuit was filed. Also, the court found that the defendant in Mosley was amenable to service. The Chicago Police Department records indicated defendant's address and license number. Furthermore, although the court requested defendant's counsel to file affidavits showing diligence to obtain service, he refused. Mosley, 126 Ill.App.2d at 41-42, 261 N.E.2d 510.

Unlike Mosley, in the present case plaintiff sought to serve defendant Jinks with summons through various sources from the time the lawsuit was filed until service was obtained through the Secretary of State. Furthermore, plaintiff neither knew Jinks' address nor was it ever established that he was amenable to service. Finally, plaintiff's counsel filed several affidavits supporting his diligence to obtain service of summons upon Jinks.

Moreover, in Penrod v. Sears, Roebuck & Co. (1986), 150 Ill.App.3d 125, 103 Ill.Dec. 346, 501 N.E.2d 367, the court held that plaintiff's failure to obtain prompt issuance of summons and to deliver it to the sheriff for service over a 7-month period showed lack of reasonable diligence. The plaintiff in Penrod had knowledge of where to locate the defendant, yet he made no inquiries of the clerk's office concerning the summons until 4 months after the complaint was filed. After plaintiff learned that no summons had issued, he waited 3 months before having a summons issued.

Contrary to Penrod, plaintiff here was not aware of where to locate Jinks. Additionally, plaintiff's counsel had an original summons issued on the date the lawsuit was filed. Thus, defendant's reliance on Mosley and Penrod is without merit.

Defendant Jinks further relies on Hanna v. Kelly (1980), 91 Ill.App.3d 896, 47 Ill.Dec. 146, 414 N.E.2d 1262, and Faust v. Michael Reese Hospital & Medical Center (1978), 61 Ill.App.3d 233, 18 Ill.Dec. 404, 377 N.E.2d 1040 to support his assertion that Checker's failure to provide his address pursuant to plaintiff's interrogatories does not excuse plaintiff's failure to exercise reasonable diligence to obtain service of process. These cases are distinguishable from the case at bar. The court in Hanna found that plaintiff relied on interrogatories directed to co-defendants to locate defendant and failed to disclose any other efforts made to discern defendant's whereabouts from outside sources. ( Hanna, 91 Ill.App.3d at 899, 477 Ill.Dec. 146, 414 N.E.2d 1262.) However, the record here shows substantial and numerous efforts by plaintiff to locate Jinks including the U.S. Post Office, Chicagoland telephone directories and information service, and the Secretary of State. Another important fact distinguishing Hanna from the present case is that plaintiff in Hanna ultimately obtained the address of the defendant. Here, plaintiff never ascertained where Jinks resided.

The Faust court, in dicta, stated that co-defendant's purposeful conduct in misspelling the name of the street where the unserved defendant resided cannot excuse plaintiff's failure to use other methods to locate her. The facts of Faust reveal that the unserved defendant could have been easily located, since her home address was correctly listed in the telephone directory for 2 years and her professional address was listed for 1 year. Furthermore, defendant's location was available through telephone subscriber information at all times relevant to the action. Faust v. Michael Reese Hospital & Medical Center (...