Stanley v. Chastek, Gen. No. 11525
| Decision Date | 06 March 1962 |
| Docket Number | Gen. No. 11525 |
| Citation | 34 Ill.App.2d 220,180 N.E.2d 512 |
| Parties | Dorothy Jean STANLEY, Appellant, v. Dale CHASTEK, Appellee. |
| Court | United States Appellate Court of Illinois |
George T. Swaim, Jr., Kankakee, Appleman, Zimmerly & McKnelly, John B. Hyde, Champaign, for appellant.
Butz, Blanke & Stith, Wayne P. Dyer, Kankakee, for appellee.
On August 7, 1959, the plaintiff, Dorothy Jean Stanley, filed her complaint at law against the defendant, Dale Chastek, alleging that on or about November 1, 1956 she entered into a contract with the defendant, the only copy being in the possession of the defendant, by which he agreed to straighten her teeth; prior to entering into the contract the defendant held himself out and represented himself to be an orthodontist and skilled in the straightening of imperfect and defective teeth; in reliance upon those representations and promises she agreed to and did undergo a course of treatment administered by the defendant designed by the defendant to straighten her teeth; unknown to her and against her will he used a novel, experimental, and untried method of teeth straightening for a person of her age, and as a result her teeth were moved so rapidly that they were damaged, the jawbone was damaged, and the teeth had to be removed wholly, to her damage; by virtue of the breach of the contract so entered into as aforesaid she has been damaged in a certain sum, for which she prayed judgment, and she demanded a jury trial.
The defendant filed a motion to dismiss upon the ground that the cause of action alleged in the complaint was not commenced within the time limited by law, and in support thereof the defendant said in his motion:
'1. That on the 6th day of November, 1956, plaintiff and defendant entered into an agreement, in writing, described as 'Professional Budget Plan', whereby plaintiff promised to pay to defendant the sum of Five Hundred Seventy-five and no/100 ($575.00) Dollars, in the manner therein provided, for professional dental services to be rendered by the defendant, a true and correct copy of said agreement in writing, and a true and correct copy of Patient's Office Record being attached hereto and made a part hereof by reference; that no other contract has been entered into by the parties hereto.
2. That this defendant, by virtue of the provisions of said agreement in writing and Patient's Office Record, as kept by the defendant with respect to the plaintiff herein, did not agree or contract to straighten plaintiff's teeth.
3. That on and after August 7, 1956, this defendant rendered professional orthodontic service and treatment to the plaintiff up to and including the 6th day of July, 1957, and defendant performed no professional services for said plaintiff after July 6, 1957.
4. That the cause of action alleged in plaintiff's Complaint is, in substance and in fact, an action in tort for damages for alleged injuries to the person of the plaintiff.
5. That by virtue of the provisions of Chapter 83, Section 15, Illinois Revised Statutes, 1957 Edition, actions and damages for injuries to the person shall be commenced within two years next after the action accrued therefor.
6. That at all times mentioned herein, defendant has resided in the State of Illinois.
7. That by virtue of the foregoing, the action of the plaintiff has been barred by the provisions of Chapter 83, Section 15, Illinois Revised Statutes.
8. That the affidavit of the defendant in support of this motion is attached hereto.'
The defendant's affidavit attached to his motion to dismiss was to the effect that on November 6, 1956 he entered into an agreement in writing with the plaintiff, a correct copy of which is attached and made a part thereof; he made and kept an office record for her, a correct copy of which is attached and made a part thereof; no other agreement in writing has been made between him and the plaintiff; on and after November 6, 1956 he rendered professional orthodontic services and treatment to the plaintiff to July 6, 1957; he performed no professional services for her after July 6, 1957; at all times since November, 6, 1956 he has resided in Illinois.
Attached to the defendant's motion to dismiss and his affidavit is a copy of a printed instrument entitled 'Professional Budget Plan', dated November 6, 1956, signed by the defendant as 'Doctor' and by the plaintiff as 'Contracting party', with the word '(Seal)' after each signature, in the presence of one Donna Ewing, which reads, so far as material, as follows: . Then follows the schedule of payment, etc., provisions for the event of failure to pay etc., a provision for the event of delays, etc., a provision for the event of termination of services prior to completion, etc. and a provision for the event of any part of the Plan being prohibited by law in any state. In those other paragraphs the instrument is referred to as 'this contract', the plaintiff as a signatory is referred to as 'the contracting party', and the services are referred to as 'services contracted for herein'. The instrument bears at the bottom the legend 'Copyright 1950 Professional Budget Plan, Madison, Wisconsin'.
Also attached to the motion to dismiss and affidavit is the patient's office record which indicates regular payments up to October 19, 1957, and also indicates, so far as may be material:
10-15-56--Impressions, x-ray, photo.
11-6-56--Construction of appliance.
11-13-56--Completion of appliance--first adjustment.
At the hearing on the motion to Dismiss, the plaintiff filed a counteraffidavit alleging as follows:
'2. The affiant says she was first aware of any damage to herself as a result of the professional services rendered to her by the defendant in said cause in the month of October, 1957, and prior to that time had had no knowledge of or no reason to believe that she had in any way been damaged by the treatments or conduct of the defendant, and that her cause of action against the defendant first occurred sometime in the month of October, 1957, the exact day of the month being unknown to the plaintiff.
3. All during the period of time that the defendant was performing professional services for the plaintiff, up to and including July 6, 1957, the plaintiff had absolutely no knowledge that the defendant was in any way breaching his contract with her, or that she was receiving any damage as a result of the contract she had entered into with the defendant.'
The Court on September 30, 1960 allowed the defendant's motion to dismiss for the reason that the action of the plaintiff was not commenced within the time limited by law, dismissed the complaint, and entered a final judgment for the defendant. The Court's view was that this is a tort action for damages for an injury to the person, it had to be commenced within two years next after the cause of action accrued, ch. 83, Ill.Rev.Stats., 1957, par. 15, the cause of action accrued on or before July 6, 1957, and the complaint filed August 7, 1959 was beyond the two year period. Within 30 days after the judgment the plaintiff filed a motion for leave to file an amended complaint and a motion to vacate the judgment, which were later denied. The record indicates an Amended Complaint 'as presented after motion disallowed but not filed'. The plaintiff appeals.
The plaintiff's theory is that her cause of action (either in tort or in contract) accrued in October, 1957 when the element of damage first occurred to her knowledge, and the suit filed August 7, 1959 was timely filed even if the two year limitations statute applies; she could maintain an action for breach of warranty of the written contract within ten years of its breach, under ch. 83 Ill.Rev.Stats. 1957, par. 17; and the Court erred in dismissing the case as being barred by the statute of limitations.
The defendant's theory is that the plaintiff's cause of action accrued at the time of committing the alleged negligent acts, which acts terminated on July 6, 1957; the action is one for damages for injury to the person and falls under the two year statute of limitations, ch. 83, Ill.Rev.Stats., 1957, par. 15; the order denying leave to file an amended complaint should not be reversed because no appeal is taken from that order and because the proposed amended complaint was not presented to the trial court prior to entry of that order.
Ch. 110, Ill.Rev.Stats., 1959, par. 48, being Section 48 of the Civil Practice Act, provides, so far as material:
'48. § 48. Involuntary dismissal based upon certain defects or defenses. (1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
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'(e) That the action was not commenced within the time limited by law.
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