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Cody v. Ladurini

MAY 22, 1969.

GEORGE CODY, PLAINTIFF-APPELLANT,

v.

FERDINANDO LADURINI, NANDO'S SPORTSMAN'S LOUNGE, INC., AN ILLINOIS CORPORATION, AND RITA DE BARTOLA, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. HARRY D. STROUSE, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The issue in this case concerns the relation back of the second amended complaint to the date of filing of the original complaint, and the question arises under section 46 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 46), and section 14 of Article VI of the Liquor Control Act ("Dram Shop Act"), (Ill Rev Stats 1965, c 43, par 135).

The order appealed from dismissed the plaintiff's action against the defendant, Nando's Lounge, Inc. The pleadings in the cause and their chronology are set forth in that they are pertinent to the issue presented for determination.

On April 6, 1967, the plaintiff filed his complaint under the Dram Shop Act against the defendants, Ferdinando Ladurini, individually and d/b/a Nando's Sportsman's Lounge, and Rita De Bartola. The complaint stated that on August 20, 1966, the defendant, Ladurini, individually and d/b/a Nando's Sportsman's Lounge, was keeper or proprietor of a tavern which gave intoxicants to himself; that he consumed such liquors on the Lounge premises which resulted in his intoxication; and that while intoxicated, he assaulted and injured the plaintiff, without provocation. Summons was issued against the defendants, and Rita De Bartola was promptly served. Ladurini was not served and the sheriff noted on the summons that he was in the Highland Park Hospital and not accessible for service.

On May 4, counsel filed a special and limited appearance on behalf of both defendants, and on June 1, counsel filed a motion to dismiss the complaint on behalf of Rita De Bartola, which asserted that the complaint failed to state a cause of action in that "no cause of action can arise from the wrongful conduct of the operator or owner of a tavern as a result of intoxication brought about by said owner's or operator's consumption of alcoholic beverages from said owner's or operator's establishment."

On June 19, the complaint was dismissed and the plaintiff was given leave to file an amended complaint which was forthwith filed and summons issued thereon for service on Ladurini. On this date, the plaintiff served notice and moved to take Ladurini's evidence deposition. Ladurini filed a motion to quash the notice of taking his deposition in that he had not been served with summons. This motion was granted and Ladurini was subsequently served with summons on June 21.

On July 19, the defendants filed a motion to dismiss the amended complaint, and on August 16, the plaintiff again served notice and moved to take Ladurini's deposition on August 24. On August 21, Ladurini filed a motion to quash the taking of his deposition, and on September 1, the plaintiff filed his motion and verified petition for leave to file a second amended complaint, substituting in lieu of "Nando's Sportsman's Lounge, a proprietorship," "Nando's Lounge, Inc., a corporation."

The petition recited the difficulties which the plaintiff had encountered in obtaining service of process upon and in taking the deposition of Ladurini — which was ultimately taken August 31; it further asserted that shortly before taking this deposition, the plaintiff was advised that the Lounge was a corporation known as Nando's Lounge, Inc., and that it was not a proprietorship as he had been led to believe; that the certified list of corporations issued by the State in 1966 and published for use in 1967, failed to list Nando's Lounge, Inc., as either a domestic or foreign corporation; and that Ladurini deposed that he was president as well as registered agent of this corporation.

The petition further recited that the second amended complaint alleged that Ladurini was a patron of Nando's Lounge, Inc.; that he purchased, was served and consumed a quantity of alcoholic beverages on said premises and, as a result, became intoxicated; that upon leaving the premises, he assaulted the plaintiff; and that the substitution of Nando's Lounge, Inc., for Nando's Sportsman's Lounge, a proprietorship, rendered moot the issues of law raised by the defendants as the basis for dismissing the amended complaint.

The petition further recited that the plaintiff had moved to file his second amended complaint with all due diligence and in full compliance with section 46 of the Civil Practice Act.

On September 1, the court granted the plaintiff leave "to file his second amended complaint substituting as a party defendant Nando's Lounge, Inc. in place and stead of Nando's Sportsman's Lounge, and for summons to issue." The second amended complaint was filed and summons issued, and was served on September 7.

On November 2, the defendant, Nando's Lounge, Inc., filed its motion to dismiss the second amended complaint on the ground that the action was not filed within the time prescribed by the Dram Shop Act. On November 24, the plaintiff filed an affidavit in opposition to the defendants' motion to strike, which contained allegations essentially similar to those found in the petition for leave to file.

The court heard the arguments of counsel in connection with the motion to strike, requested counsel for the plaintiff and the defendant to submit memoranda of law, and on August 26, 1968, entered an order dismissing Nando's Lounge, Inc. from the lawsuit; directing Rita De Bartola to file answer within 20 days; and finding that "there is no just reason for delaying the appeal of the order dismissing Nando's Lounge, Inc." The plaintiff filed notice of appeal from this order on September 16.

On July 26, 1968, the trial judge wrote a letter to the attorneys for the defendants and forwarded a copy thereof to counsel for the plaintiff, which stated that he dismissed the second amended complaint in that section 46 of the Civil Practice Act did not apply to extend the statute of limitations under the Dram Shop Act. He further asserted that his conclusion rendered it "unnecessary to decide whether or not section 46(4)(b) was complied with." However, he stated that it was "clear from the circumstances that failure to join Nando's Lounge, Inc. . . . was not inadvertent."

Upon appeal, the plaintiff urges that the trial court erred in dismissing Nando's Lounge, Inc. from the lawsuit and in refusing to apply section 46 of the Civil Practice Act and its doctrine of relation back to actions arising under the Dram Shop Act.

The defendant, Nando's Lounge, Inc., contends that section 46 of the Civil Practice Act does not apply to a "by" action under the Dram Shop Act, to permit the plaintiff to add an additional party defendant after the expiration of the one year period prescribed by the Dram Shop Act; and that the plaintiff, on appeal, has not met his burden to overcome the presumption of validity attaching to the order appealed from.

The question of whether a change may be made in the parties to an action after the statute of limitations has run, has been the subject of much controversy. Under the common-law practice, if a plaintiff made a mistake as to the parties who should have been named as defendants, by omitting to join a proper party, he could not, as a general rule, rectify his mistake or omission.

The strict common-law rule with reference to adding parties who were omitted in the first instance was ameliorated by rules of chancery practice and, subsequently, by statutes. However, such statutes were often nullified by court decisions on the theory that the time set by the particular act under consideration, was not a statute of limitations, but a condition of liability itself which required that the plaintiff must bring himself within the terms of the statute in order to recover. See: Fitzpatrick v. Pitcairn, 371 Ill. 203, 210, 20 N.E.2d 280 (1939); and Annotations, 8 ALR2d 6.

The Joint Committee Comments on section 46(4) of the Civil Practice Act (SHA ch 110, par 46(4), pages 255 through 260), adequately outline the Illinois decisions and legislative enactments dealing with this subject. At page 257, the Comments state that section 46(4) "is the solution, which it is believed, deals adequately with the problem and at the same time contains safeguards against the undermining of the statute of limitations."

The action at bar is one against the defendants for injuries to the person of the plaintiff, inflicted or caused "by an intoxicated person." The Dram Shop Act also provides a cause of action to persons sustaining injuries to person or property, or means of support "in consequence of intoxication." Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579, 583, 79 N.E.2d 854 (1948). While the defendant, Nando's Lounge, Inc., contends that section 46(4) does not apply to a "by" action under the Dram Shop Act, we find no logical reason to distinguish between the two types of Dram Shop actions with reference to the application of section 46(4) thereto.

Generally, section 46(1) deals with the joinder of parties and causes of action or defenses, and subsection (2) provides that amendments may be made if the matter introduced by the amended pleadings "grew out of the same transaction or occurrence set up in the original pleading." Subsection (4) applies to the situation in which the plaintiff sued the wrong defendant but served process upon the agent or officer of the right defendant, and the statute of limitations ran before the mistake was rectified. The decision in Fitzpatrick v. Pitcairn, supra, presented a problem for ...


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