Jones v. Lukas

• Decision Date: 23 April 1970
• Docket Number: No. 69--55,69--55
• Citation: 258 N.E.2d 147,122 Ill.App.2d 162
• Parties: Dona JONES, Plaintiff-Appellant, v. T. M. LUKAS and William D. Griffin, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 147

258 N.E.2d 147

122 Ill.App.2d 162

Dona JONES, Plaintiff-Appellant, v. T. M. LUKAS and William D. Griffin, Defendants-Appellees.

No. 69--55.

Appellate Court of Illinois, Third District.

April 23, 1970.

Leiter, Newlin, Fraser, Parkhurst & McCord, Peoria, for appellant.

Arthur B. Copeland, Heyl, Royster, Voelker & Allen, Peoria, for appellees.

STOUDER, Justice.

Plaintiff-Appellant, Dona Jones, brought this action in the Circuit Court of Peoria County seeking damages on account of the alleged medical malpractice of Defendants-Appellees T. M. Lukas and William D. Griffin. The court dismissed the complaint pursuant to the motion of defendants for summary judgment from which judgment the plaintiff has appealed.

The complaint alleged that plaintiff, Dona Jones entered Proctor Community Hospital May 27, 1964, under the care of Dr. T. M. Lukas, defendant, who recommended surgery by Dr. William D. Griffin, defendant. Surgery was performed June 9, 1964, to repair a diaphragmatic hernia, and for resection of a diverticulum of the duodenum. She remained in the hospital until June 30, 1964, she suffered great pain thereafter and on July 10, 1964, entered another hospital for medical attention. On June 18, 1964, she was informed that X-rays had shown a curvilinear surgical needle to be imbedded in her person. Additional surgery was performed August 8, 1964, for the drainage of an abscess, and she alleged that the abscess formed in the same area in which Doctor Griffin had operated upon her. Defendants were charged with the want of due care and skill in the leaving of the needle in plaintiff's body.

Answers were filed by defendants denying the allegations of negligence. At the request of plaintiff, evidence depositions were taken of Doctors Berney, (Roentgenologist), Warren (consulting physician at time of both operations) and Eastman (surgeon performing second operation).

Defendants moved for summary judgment and the motion executed by defendants' attorney referred to the depositions and in particular to the deposition of Berney. Plaintiff moved to strike the motion for summary judgment but the record does not reveal the court's ruling on the motion. In any event the plaintiff thereafter filed counter-proofs which consisted principally of references to portions of the depositions of Doctors Berney, Eastman and Warren.

The trial court after considering the pleadings, depositions and affidavits concluded that no triable issue of fact existed and thereupon dismissed the complaint.

Plaintiff first argues that the motion for summary judgment does not comply with Ill.Rev.Stat.1967, Chap. 110, Sec. 57 and Supreme Court Rule 191, Ill.Rev.Stat. c. 110A, § 191. According to plaintiff the evidence depositions of the doctors referred to were not properly considered by the trial court.

Plaintiff's motion to strike objecting to defendants' motion and supporting documents does not appear to have been considered by the trial court nor ruled upon. Since it is the duty of the movant, in this case the plaintiff, to bring such motions to the attention of the court and preserve any rulings thereon, the failure to do so waives any objections relating thereto. In any event we find no merit to the objection.

Blonar v. Inland Steel Company, 57 Ill.App.2d 99, 207 N.E.2d 124, quotes with approval the following from City of Quincy v. Sturhahn, 18 Ill.2d 604, 165 N.E.2d 271, 'The statements in the affidavit were declaratory of matters and things apparent on the face of the exhibits. Their authenticity was not denied. Since the affidavit met the requirements of the statute, it was sufficient in law to raise the questions decided on plaintiffs motion for summary judgment.'. In Blonar references to statements made in depositions were considered proper even though as to affiant they would have been hearsay.

In the case at bar no question is raised concerning the authenticity of the evidence depositions or the references to matters therein stated and in our opinion the motions and depositions were properly considered.

This brings us to the principal issue of the case namely whether as contended by plaintiff, triable questions of fact were presented by the documents filed and hence the trial court's conclusion to the contrary was error. The parties are...