Appeal from the Circuit Court of Kankakee County; the Hon.
DAVID E. ORAM, Judge, presiding. Reversed and remanded.
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) 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: "1. The Doctor . . . is rendering and/or will render professional services to Dorothy Stanley, patient, a more complete description of which services are described on the patient's office record which is hereby made a part of this Plan by incorporation as fully and completely as though the same were set forth in full herein. 2. Now, therefore, in consideration of such professional services rendered or to be rendered the Patient, the undersigned contracting party whose signature appears hereafter, on or before the date or dates mentioned below, promises to pay the Doctor . . . the total sum of Five Hundred Seventy-five and No/100 Dollars. . . ." 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 ...