APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
R. FINNEGAN, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This is an appeal by the plaintiff-appellant-cross-appellee, Fred Boozer, hereinafter referred to as plaintiff, from a ruling by the trial court granting the motion of the defendant-appellee-cross-appellant, hereinafter referred to as defendant, to strike the plaintiff's second amended complaint for failure to state a cause of action and denying plaintiff leave to make a further amendment to his complaint. The cross-appeal by the defendant is from a ruling of the trial court denying his motion to quash service of process.
We reverse the ruling raised by the cross-appeal.
The facts in this case are as follows. In July of 1964, while attending a picnic sponsored by the defendant, the plaintiff was attacked and beaten by another man who was also in attendance at the picnic. It was alleged by the plaintiff that his attacker was intoxicated at the time of the incident and that this intoxication was a result of the alcoholic beverages served by the defendant at the picnic.
In October of 1964, the plaintiff filed a three count complaint against, among others, the defendant in its association name. Count I was a statutory dram shop complaint. Count II alleged that defendant operated a dram shop at the picnic and, therefore, had a duty to exercise due care to insure that violent or abusive persons did not injure other patrons of such dram shop, including the plaintiff, and, further, that the defendant had failed to fulfill its duty, and as a result plaintiff was seriously injured. Count III was a count seeking to recover purported lost earnings allegedly so lost as a result of the injuries received by the plaintiff, which injuries were the result of the defendant's actions as set out in Counts I and II. Service of process was made upon one Edgar Milby, an agent or officer of the defendant, which was described in the summons as a corporation. In November, 1964, attorneys of the dram shop insurance carrier filed a special and limited appearance as attorneys for Milby objecting to the jurisdiction of the trial court over the defendant on the grounds that the defendant was a voluntary unincorporated association and was never at any time a corporation. These attorneys moved to have the court quash service of process. This motion was denied. Subsequently, the defendant, through the aforementioned attorneys, filed its answer as to Counts I and III only denying liability. All further pleadings filed by these attorneys spoke only to Counts and III.
On December 4, 1969, when the case came up for trial, Counts I and III were settled and were dismissed by the trial court on motion of the plaintiff. Also, the plaintiff filed two amendments to his complaint. His first amended complaint added a paragraph to Count II, which was the only remaining count, charging defendant with doing business in violation of the Illinois "assumed name statute." Plaintiff's second amended complaint charged that the plaintiff was a "business invitee" at the picnic and was injured by the failure of the defendant to exercise the duty of care owed to the plaintiff as a result of his alleged "invitee" status. Further, on December 4, 1969, the attorneys who represent the defendant on this appeal filed a special and limited appearance, before the trial court, with respect to Count II, to object to the trial court's jurisdiction over the defendant. These attorneys filed a motion to quash service on the grounds that the defendant was not subject to process in its association name. This motion was denied. The trial court then denied an oral motion by plaintiff for leave to further amend his complaint and dismissed plaintiff's second amended complaint for failure to state a cause of action.
The plaintiff appeals claiming that his second amended complaint did state a cause of action, and, therefore, the trial court erred in dismissing it and further that the trial court abused its discretion in denying plaintiff leave to file a third amended Count II.
The defendant cross-appeals claiming that the trial court erred in denying its motion to quash on the grounds that it cannot be sued in its association name.
In rendering our opinion we will speak only to the issue raised by the defendant's cross-appeal, since we think the determination thereof is dispositive of this appeal.
The defendant argues in support of its cross-appeal that it has been the consistent position of Illinois law that an unincorporated voluntary association such as a labor union is not susceptible to suit in its association name. Defendant notes that it was on this basis that it moved to quash service at the special and limited appearance made by its attorneys on December 4, 1969, objecting to the trial court's jurisdiction over the defendant. Therefore, defendant argues that the failure to grant such motion was reversible error on the part of the trial court.
Further, the defendant argues that it has not waived its objection to jurisdiction because the special appearance in 1964 of the dram shop carrier's attorneys and all further pleadings filed by such attorneys related only to Counts I and III of the complaint. Defendant says it is a general rule that each count of a complaint states a separate cause of action and as such it alleges that the only action taken as to Count II was the December 4, 1969, special appearance and motion to quash service made by the attorneys representing defendant in this appeal, and that the denial thereof was directly appealed to this court.
Finally, defendant insists that there was no waiver of its objection to jurisdiction even if we go back to 1964, and look to the actions of the dram shop carrier's attorneys acting for Edward Milby. This is so, defendant argues, because of Ill. Rev. Stat. 1969, ch. 110, par. 20(3) which states in pertinent part:
"* * * Error in ruling against the defendant on the objection is waived by the defendant's taking part in further proceedings in the case, unless the objection is on the ground that the defendant is not amenable to process issued by a court of this state." (Emphasis added.)
Defendant urges that the motion to quash in the 1964 special appearance and the 1969 special appearance and motion to quash as to Count II were on the grounds that the defendant was not susceptible to process, ...