APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
This action commenced with the filing of a complaint by Presbyterian-St. Luke's Hospital (hereinafter "Hospital") for recovery of costs incurred by Joseph and Myrtle Feil, husband and wife, for hospitalization of Myrtle Feil in April of 1974. Joseph Feil was made a defendant upon the asserted application of section 15 of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1975, ch. 68, par. 15, now Ill. Rev. Stat. 1977, ch. 40, par. 1015). Both defendants answered the complaint. In addition, Myrtle Feil alone filed a counterclaim sounding in medical negligence against the hospital. This appeal is taken from the order of the circuit court dismissing the Hospital's complaint *fn1 for noncompliance with a certain discovery order of court. No questions are raised as to the sufficiency of the pleadings.
The issues presented for review are whether: (1) the trial court erred in dismissing the Hospital's complaint and cause of action against both defendants where its alleged noncompliance with discovery rules related only to the defendant who filed the counterclaim; and (2) the trial court abused its discretion in dismissing the Hospital's complaint and cause of action as a sanction for its alleged failure to comply with discovery rules.
For reasons hereinafter noted, we reverse and remand with directions.
The complaint was filed on September 18, 1975. The answer of both defendants and counterclaim of one were filed on February 17, 1976. Counterdefendant Hospital filed a motion to dismiss the counterclaim on March 17, 1976. On that same date the Hospital also filed a notice to produce certain documents, photographs and other data, certain interrogatories and a notice for the deposition of counterclaimant Myrtle Feil, to be taken the following April 26.
The Hospital's attorneys sent a letter dated May 3, 1976, to defendants' and counterclaimant's attorneys seeking compliance with their requests for discovery and the noticed deposition, in which earlier failures on the part of the latter attorneys to respond to telephone calls requesting said compliance were alleged to have been ignored. Other letters followed, dated September 22, 1976, November 5, 1976, and October 20, 1977, which similarly sought compliance with the Hospital's March 17, 1976, discovery and deposition requests. The first response to those requests came as counterclaimant's answers to interrogatories, which are not date stamped, but which the parties suggest were filed on or about November 1, 1977, some 18 months after the discovery requests were filed.
Meanwhile, on December 28, 1976, on the Hospital's motion, the cause was transferred from the municipal division to the law division, malpractice section, of the circuit court. Trial was set for December 15, 1977. No order is found in the record with respect to when the cause was set for trial; however, the parties suggest its entry before counterclaimant answered the Hospital's interrogatories. On October 28, 1977, about one week after the Hospital's last letter requesting discovery compliance by counterclaimant, the latter herself filed requests for production, interrogatories and notices of depositions of certain persons not identified by name, but rather by position, services rendered at the Hospital, or their pre- or post-occurrence relationship to the accident upon which the alleged negligence was based.
The original counterclaim of February 17, 1976, alleged the negligence on the part of the Hospital to have taken place during April 1974. In her notice to produce interrogatories and notices of depositions of various Hospital personnel filed October 28, 1977, she identified the date of the occurrence as May 30, 1974.
On November 2, 1977, counterclaimant's motion was allowed by the trial court granting her leave to file within 14 days an amended counterclaim and authorizing court issued subpoenas for four named physicians who treated her. The amended counterclaim was filed on the same date, November 2, which under Supreme Court Rule 182(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 182(b)) would have allowed counterdefendant until November 23, 1977, within which to file its answer or otherwise plead. The amended counterclaim alleged the date of the accident to have been on May 30, 1974.
On November 30, 1977, on motion of defendants and counterclaimant, the trial court ordered that their depositions be taken sufficiently in advance of the trial date, December 15, 1977, to allow them to depose five members of the Hospital staff and the four doctors previously noticed for deposition. The motion filed sought modification of the priority of discovery *fn2 on the grounds that since the date the cause had been set for trial, Myrtle Feil and Joseph Feil had been repeatedly tendered to the Hospital for depositions, which had been repeatedly continued "for various reasons, presumably in good faith," thereby effectively denying her the right to discovery prior to the trial date.
Depositions of defendants and counterclaimant were taken on December 5, 1977. On December 14, 1977, defendants and counterclaimant moved the court for dismissal of the Hospital's complaint under Supreme Court Rule 219 (Ill. Rev. Stat. 1977, ch. 110A, par. 219), on the grounds that the Hospital had failed to produce its personnel for deposition, or answer interrogatories, or comply with her production request. On December 15, 1977, the Hospital's complaint and cause of action were dismissed "* * * as a sanction for its failure to comply with discovery * * *," and the counterclaim was transferred to another courtroom for prove-up, where it was subsequently dismissed without prejudice on the same day. The Hospital filed answers to counterclaimant's interrogatories on January 9, 1978, together with its motion to vacate. In the motion, the Hospital set forth the history of discovery requests made by each side and suggested that since counterclaimant had not complied with the discovery it had previously initiated until December 5, 1977, the Hospital's period for compliance with counterclaimant's discovery requests did not expire until January 5, 1978, and suggested that since all the delays were occasioned by defendants and counterclaimant, the harsh sanction of dismissal should not have been imposed upon the Hospital, attaching as exhibits the letters requesting counterclaimant's compliance with discovery described earlier in this opinion. On January 9, 1978, the motion to vacate was denied.
1, 2 The Hospital's first point is that dismissal of the Hospital's claim against Joseph Feil as a discovery sanction by the trial court was an abuse of discretion since Joseph Feil had never sought discovery from the Hospital and was not a counterclaimant against it. Defendants and counterclaimant contend that because the Hospital failed to raise this point in its motion to vacate, it is a new theory which cannot be considered on appeal, relying on Benson v. Isaacs (1961), 22 Ill.2d 606, 177 N.E.2d 209. We disagree. In Benson, the supreme court had before it a new theory of recovery on the merits of the case never considered by the trial judge. Here, the trial court in determining the appropriate sanction to be imposed for failure to comply with discovery had before it all the necessary documents which would have informed it that defendant Joseph Feil was not a party to the original counterclaim and sought no relief in the amended counterclaim, nor any discovery. Dismissal of the Hospital's complaint as to Joseph Feil was therefore without basis. In Hoover v. University of Chicago Hospitals (1977), 51 Ill. App.3d 263, 366 N.E.2d 925, involving a malpractice action, dismissal of certain counts of the complaint for noncompliance with discovery rules was reversed on the ground that only those pleadings which bore a reasonable relationship to the information withheld on discovery may be stricken as a sanction for that failure. Dismissal of the Hospital's complaint as to Joseph Feil, who had himself sought no discovery, is clearly error and must be reversed, and the Hospital's complaint reinstated as to him.
Defendants and counterclaimant maintain that although the complaint filed by the Hospital sought relief from both Joseph and Myrtle Feil based upon section 15 of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1975, ch. 68, par. 15), because the Hospital services were rendered to Myrtle Feil, the action against Joseph Feil, her husband, is purely derivative and since the complaint was properly dismissed as to Myrtle Feil, the Hospital may not maintain an action against her husband. No authority is cited in support of this proposition; the statute on its face is to the contrary, permitting suit to be filed against husband or wife "jointly or separately." This language was early construed in Barnett v. Marks (1897), 71 Ill. App. 673, as imposing joint and several liability, the court there holding in a suit against the wife for rental of a house leased by the husband (71 Ill. App. 673, 675):
"The liability of the appellant, under the statute, was several, as well as joint with her husband, and it was not necessary to a recovery against her that there should also be a judgment against him, and if there were no judgment against him before the justice, it ...