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Muffo v. Forsyth

OPINION FILED MARCH 29, 1976.

CARMEN C. MUFFO ET AL., PLAINTIFFS-APPELLANTS,

v.

B. TODD FORSYTH, M.D., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from an order of the circuit court of St. Clair County dismissing the complaint of plaintiffs against Barnes Hospital, Inc., for lack of jurisdiction and quashing service of summons upon the defendant, B. Todd Forsyth, M.D. The sole issue is whether the trial court correctly ruled that it had no jurisdiction over the two out-of-State defendants for certain alleged acts of malpractice committed against the plaintiffs.

Plaintiffs, Carmen C. Muffo and Jacqueline Muffo, his wife, residents of the State of Illinois, filed a 12-count complaint alleging that the defendants, B. Todd Forsyth and Barnes Hospital, Inc., were guilty of negligence in their treatment of Carmen Muffo. The complaint alleged that the defendants prescribed a drug known as apresoline for the plaintiff Carmen Muffo, and that although Carmen Muffo had a common reaction to the drug, the defendants continued to prescribe the drug for a lengthy period of time and that the plaintiff, Carmen Muffo, suffered serious and permanent injuries as a result of this alleged negligence. The complaint further alleged acts of negligence on the part of the manufacturer of the drug, the pharmacy where the drug was purchased and the pharmacists who filled the prescription.

The defendants, Ciba-Geigy Corporation, the manufacturer; John N. Fisher, R.Ph., and Gerald P. Bailey, R.Ph., the pharmacists; and Loisel Drug Company, the pharmacy, all filed answers to the complaint and are not parties to this appeal.

The defendant, Barnes Hospital, Inc., filed a special appearance contesting the jurisdiction of the court, along with an affidavit from the assistant secretary of the corporation that Barnes Hospital, Inc., was a Missouri corporation with its principal place of business in Missouri and that it does no business in Illinois. The affidavit further concluded that the plaintiff's cause of action did not arise from the commission of a tortious act in Illinois.

Defendant, B. Todd Forsyth, filed a motion to quash service of summons for the alleged reason that service was had upon the defendant, B. Todd Forsyth, in Missouri, that he had not practiced medicine in the State of Illinois, had never been a resident of the State of Illinois and that there is no statute or rule of Court which provides for extraterritorial service or jurisdiction.

On the date of the the hearing on the motion of defendants as to jurisdiction, the plaintiff, Carmen Muffo, filed an affidavit wherein he alleged that he was a resident of the State of Illinois and that he informed Barnes Hospital, Inc., at the time of his treatment. The affidavit also states that the defendant, B. Todd Forsyth, was aware of the residence of Carmen Muffo and that the defendant, B. Todd Forsyth, had called prescriptions of the drug to the defendant, Loisel Drug Company.

• 1 A resolution of this dispute requires an interpretation by this court of the Illinois long-arm statute, which in pertinent part provides:

"Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State * * *." Ill. Rev. Stat. 1973, ch. 110, par. 16(1).

"(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:

(a) The transaction of any business within this State;

(b) The commission of a tortious act within this State; * * *

(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State." Ill. Rev. Stat. 1973, ch. 110, pars. 17(1) (a), (b), and 17(2).

The Illinois Supreme Court has interpreted the above Act to "reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process ...


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