APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
An action was brought by plaintiff, personally and as administrator, on behalf of herself and her children as dependents of her deceased husband, for damages sustained by reason of his death. The cause of action was based on theories of negligence and strict liability.
Gleason Crane Rental, Inc. (hereafter Gleason), one of the defendants in the action, made a motion to dismiss due to the failure of plaintiff to serve it in an alleged timely manner. The trial court sustained the motion to dismiss plaintiff's complaint for lack of due diligence in serving defendant Gleason. This appeal was taken from that order and we reverse.
The issues presented for review are (1) whether the trial court abused its discretion in striking plaintiff's complaint and dismissing her cause of action as to defendant Gleason, and (2) whether "reasonable diligence" was exercised by plaintiff where defendant Gleason was not promptly served with summons, but it was aware of the pendency of the action in court.
The instant case involves an incident which occurred in August 1972. Richard Burch and William Bruce Farthing were laborers steadying a large metal fuel tank attached to the lower end of a steel cable suspended from the boom of a mobile crane while the tank was being moved. As it moved, the boom passed high tension electric lines and the cable struck the lines causing a charge of electricity to be carried down to the two men holding the fuel tank. As a result, William Bruce Farthing was killed and Richard Burch was permanently injured. Richard Burch and Barbara Farthing, administrator of the estate of William Bruce Farthing, pleaded separate causes of action against the various defendants.
The Burch case was filed in October 1973 and the Farthing case was filed in January 1974. Gleason filed an appearance and answer in the Burch case on January 11, 1974. The original summons which issued in the Farthing case was not served due to the incorrect address on the summons. It was returned "not found" by the sheriff's office. Defendant Gleason did not file an appearance in the Farthing case as it had done in the Burch case.
The other defendants involved in the litigation sent several notices to defendant Gleason regarding the Farthing case. In August 1974, counsel for one of the defendants served notice upon counsel for all parties in the Farthing case, including defendant Gleason's counsel, of its change of address. In April 1975, another defendant served notice upon counsel for all parties in the Farthing case, including defendant Gleason's counsel, of its change of address.
On December 11, 1975, an alias summons was issued directed to defendant Gleason at a different address from that in the original summons. It was served on December 15, 1975.
A motion was made by one of the defendants to consolidate the two cases of Burch and Farthing. The motion stated that the two cases involved the same parties, the same issues, and arose out of the same event. An order was entered on February 28, 1977, consolidating the cases.
On April 4, 1977, defendant Gleason, under the consolidated caption, filed interrogatories directed to plaintiff Burch. Also, on June 28, 1977, under the same caption, counsel for defendant Natural Gas Pipeline served upon all other counsel, including Gleason, notice of filing interrogatories directed to plaintiff Burch and plaintiff Farthing.
On August 23, 1977, under the consolidated case numbers, defendant Gleason filed a motion for leave to file a motion for summary judgment on count II of the Burch complaint.
On September 6, 1977, under the caption of the Farthing case alone, defendant Gleason served a notice of filing and a request to produce. The request to produce asked for extensive discovery from plaintiff and other defendants pursuant to Supreme Court Rule 214. Also on that day, under the Farthing caption, defendant Gleason filed a motion to strike plaintiff's complaint and dismiss her cause of action pursuant to Supreme Court Rule 103(b).
On September 30, 1977, plaintiff Farthing filed her reply to the motion to strike and dismiss. Plaintiff made certain allegations regarding defendant Gleason's conduct in the case. Farthing stated that defendant Gleason by its conduct had lulled plaintiff's counsel into a feeling of security by defendant's appearance in the case.
Defendant Gleason filed a reply in support of its motion to strike and dismiss wherein it stated that plaintiff Farthing failed to exercise due diligence in obtaining service of process on defendant Gleason. On October 11, 1977, the trial court granted defendant ...