Appeal from the Circuit Court of DuPage County; the Hon.
WILLIAM J. BAUER, Judge, presiding. Reversed and remanded.
PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
This appeal arises from an order of the trial court dismissing one count of plaintiff's complaint which is founded in negligence. Another count, not dismissed and still pending, is based upon a breach of contract.
On July 10, 1956, the plaintiff, Board of Education of Community High School District #88, entered into a contract with the architectural firm of Perkins & Will, referred to herein as defendant, to design and supervise the construction of a new high school. Plans and specifications were submitted to the plaintiff in September, 1957, and on October 15, 1957, the contracting firm of Joseph J. Duffy Company (Duffy) was awarded a construction contract.
On February 1, 1966, the plaintiff filed suit against the defendant and Duffy, alleging certain defects in construction. Process was served immediately upon the defendant, but the plaintiff either did not attempt or was unable to serve Duffy. Thereafter the defendant filed a third-party complaint against Duffy seeking indemnity in the event of liability and, in this instance, service was had upon Duffy.
Duffy filed a motion to dismiss the original action on the grounds that there had been lack of diligence in service, and also, to dismiss the third-party complaint on the grounds that the action against the defendant was barred by the statute of limitations. The trial court granted both motions.
An appeal by the defendant, from that portion of the order dismissing the third party complaint, was decided by this Court in the case of Board of Education of High School Dist. No. 88 v. Joseph J. Duffy Co., 97 Ill. App.2d 158, 240 N.E.2d 5 (1968). The plaintiff, however, did not appeal. In the previous appeal, wherein the dismissal was affirmed, it was stated at page 162:
"We conclude, therefore, that no third-party action would lie against Duffy to indemnify Perkins for liability arising out of plaintiff's negligence count, inasmuch as said count is barred by limitations. The rationale of this decision would authorize the trial court to dismiss the complaint against Perkins insofar as the negligence theory is concerned."
After our decision, the defendant presented the trial court with a motion to dismiss the remaining counts of the original complaint. The court declined to dismiss the breach of contract count but did dismiss the negligence count. The plaintiff appeals the decision which dismissed the negligence count against the defendant.
The position of the defendant is that our former decision, and particularly the language previously quoted, requires us to affirm the dismissal.
We believe that our former decision, read as a whole, does not so require. In the former case we had before us only the matter of the third-party complaint between the defendant and the contractor, Duffy. The plaintiff was not a party to that appeal. However, in that decision we conditioned our opinion when we said at page 161:
"Insofar as the plaintiff's claim against Perkins is based on alleged negligence, the claim would be barred by the statute of limitations if such defense were not waived, notwithstanding that the negligence may not have been discovered until recently before the filing of the suit. As applicable here the period of limitations commences when the negligent act takes place, and is not tolled by the plaintiff's ignorance of his injury. Simoniz Co. v. J. Emil Anderson & Sons, Inc., 81 Ill. App.2d 428, 437-438 (1967); Mosby v. Michael Reese Hospital, 49 Ill. App.2d 336, 341-342 (1964)." (Emphasis added.)
At page 163, we further stated:
". . . and in the instant case the statute of limitations prevents Perkins from being liable in negligence, assuming Perkins does not abandon that defense." (Emphasis added.)
We did not decide the waiver question because that was not presented to us. Indeed, the party who would have the right to allege waiver, that is, plaintiff, was not even before us.
In opposition to the motion to dismiss filed by the defendant, the plaintiff filed the affidavit of one Jack A. Monts, Director of Business Affairs for the plaintiff during the time in controversy. Attached to the affidavit were copies of correspondence covering the period January, 1960 through November, 1962. The affidavit and correspondence shows continuing efforts to resolve the various defects and controversies. We do not decide that these efforts constitute a waiver of the statute of limitations. We do decide, however, that the affidavit and correspondence present a question of fact as yet unresolved and it is fundamental that plaintiff is entitled to have its day in court on that question. We conclude, ...