Suing v. Catton

• Decision Date: 08 January 1970
• Docket Number: Gen. No. 69--36
• Citation: 254 N.E.2d 806,118 Ill.App.2d 468
• Parties: Christy SUING, Plaintiff-Appellant, v. Robert D. CATTON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 806

254 N.E.2d 806

118 Ill.App.2d 468

Christy SUING, Plaintiff-Appellant, v. Robert D. CATTON, Defendant-Appellee.

Gen. No. 69--36.

Appellate Court of Illinois, Third District.

Jan. 8, 1970.

Frederick W. Allen, Peoria, for appellant.

Cassidy, Cassidy, Quinn & Lindholm, Peoria, for appellee.

RYAN, Justice.

Plaintiff was injured while riding as a passenger in an automobile owned and operated by another. The automobile was struck by the defendant's car. The accident occurred on September 14, 1965. Plaintiff filed her Complaint for personal injuries on March 11, 1968, and demanded a jury trial. Defendant filed a motion to dismiss based upon the two-year statute of limitations. (Ill.Rev.Stat.1965, Chap. 83, Sec. 15). Plaintiff filed an answer to the motion to dismiss and alleged therein that the defendant through his insurance company had waived his right to rely upon the statute of limitations and is estopped to assert the statute of limitations in bar to the plaintiff's claim. Plaintiff attached and affidavit in support of her answer to the motion to dismiss. No counteraffidavits were filed by the defendant. The trial court granted the motion to dismiss and ordered the cause stricken. This appeal followed.

The motion to dismiss was one properly filed under Section 48, Par. 1(e) of the Civil Practice Act which provides as a ground for such a motion 'that the action was not commenced within the time limited by law.' Ill.Rev.Stat.1965, chap. 110, Sec. 48, Par. 1(e). Paragraph 3 of the same section of the Civil Practice Act provides that the opposite party may present affidavits or other proof denying the facts alleged or establishing facts obviating the grounds or defect. This paragraph then provides that if a material and disputed question of fact is raised the court may decide the motion upon the affidavits and evidence, but, the court shall deny the motion if it is an action of law and a jury demand has been filed by the opposite party in apt time.

The determining question in this appeal is whether there was a material question of fact raised by the affidavit filed by the plaintiff in opposition to defendant's motion to dismiss. We feel that a question of fact was raised by the plaintiff's affidavit and that the trial court erroneously granted defendant's motion to dismiss.

The answer of the plaintiff to the defendant's motion alleged that the defendant through his insurance company has waived his right to rely upon the statute of limitations and is estopped to assert the statute of limitations in bar of the plaintiff's claim. Since defendant did not file a counteraffidavit, we must look to plaintiff's affidavit to determine whether a question of fact concerning waiver or estoppel has been raised. Devlin v. Wantroba, 72 Ill.App.2d 383, 218 N.E.2d 496. In the absence of a counteraffidavit the facts set forth in plaintiff's affidavit must be taken as true. G. Chicoine Contractors, Inc. v. John Marshall Bldg. Corp., 77 Ill.App.2d 437, 222 N.E.2d 712. We do not perceive however that the principal thus just stated requires that the trial court consider as admitted allegations of pure conclusions and we shall not so consider the same on this appeal. Tau Delta Phi etc. v. Gutierrez, 89 Ill.App.2d 25, 232 N.E.2d 205. We shall omit from the recitation of facts contained in the affidavit as hereinafter set forth the conclusion contained therein and objected to by the appellee on this appeal. Said conclusion being to the effect that the representative of the insurance company seemed to concede that the accident was his company's driver's fault and led the affiant to believe he would make a settlement with her.

Plaintiff's affidavit alleged that on September 14, 1965, while on a trip with her husband the car in which she was riding was struck in the rear in Tazewell County, Illinois. When she returned to her home in Maryland she contacted an orthopedic surgeon. On November 13, 1965, Mr. Eklund from Aetna Life and Casualty Company stopped at her apartment while both she and her husband were at work and left his card. She phoned Mr. Eklund the next day and gave him the name and address of the owner of the car in which she had been riding. She also told him of her injury, the complications such as the cervical collar she was wearing, the loss of work and expenses to date. Mr. Eklund continued to call her every two weeks for information concerning her visits to the doctor. In November, 1965, he sent her some forms regarding the accident. She attached certain information sheets concerning the accident to the forms and returned them to Mr. Eklund. Every time she talked with him he said he would keep in contact with her concerning her injuries and possible release from the doctor.

Early in 1966 Mr. Eklund issued a check to the owner of the car for repairs. The owner informed the plaintiff that the check was $50 less than the cost of repairs. She in turn called Mr. Eklund concerning the shortage. He told her to have the owner return the check to him. It was a mistake that they had not included the $50. The check was returned to Mr. Eklund. She never heard from Mr. Eklund again. In 1966 upon learning that the owner of the automobile had not received the corrected check, she again contacted Aetna and learned that a Mr. Cassidy would handle her case. He told her the owner would receive a corrected check. A few weeks later the owner did receive another check for car repairs but again it was $50 less than the cost of repairs. Mr. Cassidy said when they settled for everything the $50 would be paid then.

When Mr. Cassidy took over the case it was agreed that instead of having him call her periodically to see if she was released from the doctor, she would call him each time she saw the doctor. This, she did and reported what the doctor had said each time. During the spring and summer of 1967 plaintiff made several unsuccessful attempts to contact Cassiday, but did contact him late in August or early in September, 1967, and told him her condition was the same. He said he would keep in touch and asked her if the doctor had released her yet. She replied that he had not.

Nothing was heard from Cassidy for awhile. Finally plaintiff's husband contacted him on December 12, 1967, and told him that plaintiff wanted to talk about her condition. On December 15, 1967, Cassidy called plaintiff and she told him of her condition and of the possible need of an operation. He said he was sending some medical forms to her doctor that day. Plaintiff called the doctor several times and learned that the forms had not been received. On December 19, 1967 she again called Cassidy. He said he would call her again at her home on that evening to talk to her concerning settlement. Mr. Cassidy did not call plaintiff as indicated. Several attempts were made by plaintiff and others of her family to again contact Mr. Cassidy. He was not in his office on those occasions and did not return the calls. Finally on February 13, 1968, Cassidy called plaintiff and informed her that the statute of limitations had run in September, 1967.

Both plaintiff and defendant have cited Dickirson v. Pacific Mutual Life Insurance Co., 319 Ill. 311, 150 N.E. 256 which holds that the question of waiver is a question of fact when there is sufficient evidence of such fact to...