APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 30, 1977.
This is an appeal from two separate orders of the trial court which resulted in a dismissal of all four counts of plaintiff's amended complaint. The first order dismissed count II of the amended complaint for failure to state a cause of action. Amended count II alleged an intentional tort against the defendant doctor and sought recovery jointly and severally from the defendant doctor and his employer, the University of Chicago Hospitals. The second order dismissed the remaining counts of plaintiff's amended complaint for failure to comply with a discovery order. Plaintiff, arguing pro se, now appeals from both of the above orders.
Plaintiff raises the following issues for review: (1) whether the trial court erred in denying her request for a change of venue; (2) whether the trial court erred in dismissing count II of the amended complaint; and (3) whether the trial court erred in striking the remaining counts of plaintiff's amended complaint due to her failure to produce an expert witness.
We affirm in part, reverse in part, and remand.
This action was initiated when plaintiff, through retained counsel, filed a four-count complaint alleging malpractice and assault and seeking damages from Dr. Kayoda Shenkoya and his employer, the University of Chicago Hospitals. After the trial court ordered that the original complaint be dismissed, plaintiff, again with the assistance of counsel, filed an amended complaint in four counts. Count I of the amended complaint alleged that while plaintiff was being examined by Dr. Shenkoya on or about September 13, 1973, at the University of Chicago Hospitals, he intentionally assaulted her, overpowered her and had sexual intercourse with her against her will. Count I demanded both compensatory and punitive damages from Dr. Shenkoya. Count II of the amended complaint incorporated by reference the above allegations of count I and further alleged that the above sexual assault occurred within the office examining room of the University of Chicago Hospitals while Dr. Shenkoya was an agent and employee of said hospital and acting in behalf of said hospital. Count II prayed for compensatory and punitive damages from both defendants jointly and severally.
In count III of the amended complaint plaintiff alleged that Dr. Shenkoya, knowing that plaintiff was suffering from severe emotional distress, negligently prescribed and dispensed sleeping pills and tranquilizers and prayed for damages from the defendant doctor. In count IV of the amended complaint plaintiff realleged that Dr. Shenkoya was an agent of the hospital, that he was acting within the scope of his employment and on behalf of the defendant hospital when he negligently prescribed the sleeping pills and tranquilizers. Count IV demanded judgment against the defendants jointly and severally.
Defendants filed separate answers to the amended complaint and motions to strike the same. While these motions were pending, plaintiff filed a motion to discharge her counsel. After the trial court granted this motion, the plaintiff, acting pro se, filed a second amended count III. In this second amended count III plaintiff alleged that from December of 1973 to September of 1974 she was a patient at the University of Chicago Hospitals and was receiving treatment from Dr. Shenkoya; that specifically on January 24, 1974, she was treated for Rheumatic Heart Disease by Dr. Shenkoya; that Dr. Shenkoya stated that this condition was aggravated by tension and that if the plaintiff did not get sexual relief from such tension she would need open heart surgery; and that on January 24, 1974, without her consent, the defendant doctor sexually molested her. This second amended count III also alleged that Dr. Shenkoya negligently prescribed for her sleeping pills and tranquilizers and otherwise negligently treated her and that all the above acts occurred while the defendant doctor was an agent and employee of the University of Chicago Hospitals and acting within the scope of his employment. This court concluded praying for judgment against both Dr. Shenkoya and the defendant hospital individually.
Defendants filed separate answers to this second amended count III and the hospital renewed its motion to strike count II of the amended complaint. On May 19, 1976, the trial court dismissed count II of the amended complaint for failure to state a cause of action.
Shortly after dismissing count II of the amended complaint, the trial court, pursuant to Supreme Court Rules 218 and 219(c) (Ill. Rev. Stat. 1975, ch. 110A, pars. 218 and 219(c)), dismissed counts I, III and IV of the amended complaint due to plaintiff's failure to comply with an order for discovery. The facts underlying this second order are briefly set forth below. On February 26, 1976, defendants filed and served plaintiff with interrogatories and a request to produce. After plaintiff failed to comply with these requests for discovery and pursuant to defendants' motion, the trial court, on June 7, 1976, ordered that plaintiff answer the interrogatories on or before June 14, 1976. Plaintiff thereafter filed answers to the interrogatories and a response to defendants' request to produce. Pursuant to defendants' motion to strike plaintiff's answers and response, the trial court, on June 23, ordered that the matter be continued "to June 30, 1976 unless plaintiff shall have produced the name of an expert witness in her behalf." On July 6, the trial court entered an order finding that plaintiff had (1) refused to retain counsel although she was without skill to prosecute her cause, (2) had refused court-appointed counsel, and (3) had wrongfully failed and refused to disclose an expert witness in her behalf. The trial court's order concluded dismissing the cause with prejudice pursuant to Supreme Court Rules 218 and 219(c).
• 1 We first consider whether the trial court erred in denying the plaintiff's purported motion for a change of venue. On May 18, 1976, plaintiff, proceeding pro se, filed a document captioned "Affidavit of Prejudice" which alleged that the trial court judge was prejudiced. Plaintiff refers to this document in her appeal and argues that it entitled her to a change of venue. We disagree. The document was not verified nor did it request a change of venue. If a party fears that he will not receive a fair trial because the judge is prejudiced against him, a change of venue may be had only upon application. (Ill. Rev. Stat. 1975, ch. 146, par. 1.) Every such application for a change of venue shall be verified by the affidavit of the applicant and shall pray for a change of venue. (Ill. Rev. Stat. 1975, ch. 146, par. 3.) Plaintiff's application did neither and as a result the trial court correctly dismissed it.
We next consider the propriety of the trial court's order of May 19, 1976, dismissing count II of the amended complaint for failure to state a cause of action. In count II of the amended complaint plaintiff alleged that Dr. Shenkoya, while an agent of defendant hospital and while acting in the scope of his agency, made an indecent assault upon the plaintiff and carnally knew her against her will. Amended count II sought judgment against Dr. Shenkoya and the hospital jointly and severally.
• 2 It is our decision that the trial court correctly dismissed count II of the amended complaint because it failed to state a meritorious cause of action. A good summary of cases in Illinois concerning an employer's responsibility for acts of his employee is contained as follows in Bremen State Bank v. Hartford Accident & Indemnity Co. (7th Cir. 1970), 427 F.2d 425, 428:
"Thus, an employer was not liable for the criminal act of its employee-watchman in setting fire to the building which he had been employed to guard, Apex Smelting Co. v. Burns, 175 F.2d 978 (7th Cir. 1949), or for the shooting of a trespasser who was leaving the employer's premises by a guard who was armed without the knowledge or permission of the employer, Belt Railway Co. v. Banicki, supra, or where the employee engaged in a fistfight for purposes unrelated to his job, Horecker v. Pere Marquette R. Co., 238 Ill. App. 278 (1925), or where the employee-driver deviated from the route leading to the destination assigned by the employer, Boehmer v. Norton, 328 Ill. App. 17, 65 N.E.2d 212 (1946). On the other hand, the employer was held liable where an employee-brakeman who had been instructed to remove unauthorized riders on railroad cars wilfully and maliciously pulled a boy off a moving train, crushing the latter's foot in the process, Illinois Central R. Co. ...