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House v. Maddox

OPINION FILED FEBRUARY 10, 1977.

ELIZABETH HOUSE, PLAINTIFF-APPELLEE,

v.

DAVID J. MADDOX, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

• 1 Defendant, David J. Maddox, seeks reversal of a $3,000 judgment entered against him for legal malpractice in allowing the statute of limitations to run on the tort claim of his client, plaintiff, Elizabeth House. While no brief has been filed by the plaintiff-appellee, this court will consider the case on the merits since the issues and the record are of such a nature that it may be decided without the aid of appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

ISSUES:

The issues presented for review are (1) whether the failure of an expert witness to testify as to the alleged legal malpractice was reversible error; (2) whether there was proof of a valid claim which was lost by the negligence of the defendant; (3) whether the conduct of the insurance company in negotiating with defendant was a waiver by estoppel of the right to assert the statute of limitations; and (4) whether defendant was required to testify pursuant to section 60 of the Civil Practice Act in a malpractice case.

STATEMENT OF FACTS:

Plaintiff testified that on February 3, 1967, while employed as a maid in the home of Mr. and Mrs. Walter V. Neumann, she was bitten by their German Shepherd dog. Plaintiff recounted that she previously had called Mrs. Neumann and told her she was on the way to work. When she arrived at the house she heard the dog in his outside pen. The dog had bitten her once before and the Neumanns did not let it run loose in the house when she was there. As she went into the dining room, she heard the dog coming into the house. She tried to get away but the dog caught her and bit her on the leg. She testified that the dog weighed 150 pounds and was as tall as she when it stood on its hind legs.

As a result of her injuries plaintiff was initially hospitalized for 11 days. The wounds caused a phlebitis condition for which she was hospitalized on subsequent occasions. She continued to receive treatment from her doctor for some months after her hospitalization. For a time, plaintiff was unable to work because her leg would swell when she stood.

Plaintiff attempted to negotiate a settlement of her claim for damages with the insurance carrier of her employer. She had conversations with Mr. Pietsch of the Kemper Insurance Company, in which he offered her up to $8,000 to settle her claim but no final compromise was ever reached.

On January 16, 1968, plaintiff retained defendant, a licensed attorney, to prosecute her claim. The defendant accepted the case and entered into various settlement negotiations with the insurance company.

Defendant, called as a witness by plaintiff under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), testified that between January 16, 1968, and February of 1969, he had about 20 phone conversations with Pietsch. During those conversations Pietsch agreed to settle the claim, and the only question was the amount, although Pietsch had offered up to $16,500. The last conversation the defendant had with Pietsch was on October 3, 1968. From then until January 31, 1969, he phoned Pietsch on the average of once a week but was never able to reach him. On January 31, 1969, the defendant received a call from an employee of Kemper, who told him Kemper would not pay the plaintiff's claim. The statute of limitations in connection with plaintiff's tort claim was due to run out three days later on February 3, 1969. Ill. Rev. Stat. 1967, ch. 83, par. 15.

The defendant took no action until September 30, 1969, almost eight months after the limitations period had expired. (Ill. Rev. Stat. 1967, ch. 83, par. 15.) He then filed suit in the circuit court of Cook County against plaintiff's former employer, Walter V. Neumann. A motion to dismiss the complaint for failure to comply with the statute of limitations was granted on December 8, 1969. The dismissal order was vacated on December 22, 1969, in order to allow plaintiff a further opportunity to present arguments against the motion to dismiss. On January 7, 1970, the court struck plaintiff's complaint against her former employer with leave to file an amended complaint within 28 days if plaintiff chose to allege there were settlement negotiations with her former employer or his insurance carrier subsequent to the expiration of the statute of limitations. An amended complaint was not filed and a final order dismissing the cause was entered on May 21, 1970.

The plaintiff testified further that after she retained the defendant to represent her she was unable to contact him even though she called his office numerous times and left messages with his secretary. In June of 1971, plaintiff went to the defendant's home and asked him to bring the case to completion or refer the case to another lawyer, and he promised to complete the settlement and send her the money. Plaintiff's son testified he visited defendant in June or July of 1971 to determine what defendant was doing with his mother's case but he was unable to get a direct response.

On June 24, 1971, defendant signed a piece of paper on which he had written that he would send plaintiff a statement pertaining to the case, but failed to do so. In a letter received by plaintiff on July 3, 1971, defendant wrote that he was working in her best interests and that she could call on him at any time for whatever sum she needed. He enclosed a check for $100. Thereafter, plaintiff checked the court files and found that the case against her former employer had been dismissed. She then retained new counsel who unsuccessfully attempted to have the case against her former employer reinstated.

Defendant placed into evidence a statement of plaintiff's medical history and prognosis "as the history of the case." In final argument defendant claimed that he ...


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