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Daily v. Hartley





APPEAL from the Circuit Court of Will County; the Hon. JOHN VERKLAN, Judge, presiding.


This case involves an appeal from an order of the Circuit Court of Will County dismissing the complaint of plaintiff Clarence R. Daily with prejudice pursuant to Supreme Court Rule 103(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 103(b)) on the grounds that he had not been diligent in obtaining service upon the now deceased defendant Richard Mac Farlane. For the reasons stated hereafter, we affirm.

The plaintiff Daily and Richard Mac Farlane were union pipefitters. Early in 1968 they had become acquainted through their work at a Rexall Chemical plant in Will County. On May 22 of that year Mac Farlane was involved in an automobile accident which resulted in injury to Daily, who was allegedly riding as his passenger. On May 21, 1970, — one day before the two-year statute of limitations for personal injury actions would have run — Daily filed a $50,000 personal injury suit against Mac Farlane in the Circuit Court of Will County for the injuries he sustained in the accident. In the complaint the plaintiff referred to Mac Farlane as "Mac Farland." The misspelling of the defendant's surname was attributable to a mistaken belief on the part of Daily that the defendant's name was in fact "Mac Farland." The summons placed with the sheriff of Will County on May 21 was never served, and expired on June 22, 1970.

The testimony was that after his release from the hospital but prior to filing suit Daily made numerous personal attempts to locate the defendant, none of which were successful. Neither Mac Farlane nor two other individuals who were at the accident scene could be found at the Rexall Chemical plant. Inquiries to acquaintances as to Mac Farlane's whereabouts were to no avail. On one occasion Daily sought to obtain Mac Farlane's address from Pipefitters' Union Local 597 in Chicago, but was informed that the union would not divulge any such information. A search of the Chicago telephone directory also proved fruitless.

Attorney Joseph Tryner was initially retained by Daily to represent him in the personal injury suit against "Mac Farland." Like Daily, Tryner indicated he made a number of attempts to locate the defendant. He checked with both the Illinois State Police and the Will County Sheriff's Department to ascertain if an accident report had been filed, and was informed that none had. He made two efforts to obtain the defendant's address from the pipefitters' union, but received the same negative response that was given to Daily. The efforts of an investigator whom he hired to find Mac Farlane proved unsuccessful, as did examination of Chicago and suburban telephone directories. Tryner did have an alias summons issued to an address in Justice, Illinois, but the summons was returned "not found."

In 1975, with Mac Farlane still not having been served, Tryner turned the case over to another attorney, George P. Troha. Troha repeated many of the steps both Daily and Tryner had taken in their endeavors to locate Mac Farlane. He contacted the Will County Sheriff's Department, the pipefitters' union, and checked local telephone directories. All of these efforts proved unsuccessful. Then, in response to Troha's request that he renew his efforts to find Mac Farlane, Daily discovered from one of Mac Farlane's friends that the defendant had been killed in a snowmobile accident. After finding that no estate for Mac Farlane had been opened in either Cook or Du Page counties, Troha filed a petition to appoint the public administrator of Will County as administrator of Mac Farlane's estate. Troha subsequently obtained service upon George Hartley, the public administrator and defendant in the instant case, on January 18, 1977.

Attorney Frank Masters represented Mac Farlane's automobile liability insurer, The Insurance Company of North America, and was authorized to represent defendant Hartley under a reservation of rights agreement. On July 1, 1977, Masters personally appeared in court on behalf of Hartley and advised the court that he would represent the defendant in future proceedings involving the Daily lawsuit. On this occasion he asked for and was granted a continuance until October. On two subsequent occasions (October 3 and November 1, 1977) both Troha and Masters appeared before the court and the cause was continued at Masters' request. On November 1 the trial was set for January 9, 1978.

On November 5, 1977, Troha took a deposition of Richard Mac Farlane's widow, Charlene. Although Masters was present at the deposition, he did not participate. Later in November (November 29) Masters filed a special and limited appearance and a motion to dismiss the plaintiff's complaint pursuant to Supreme Court Rule 103(b) on the grounds that the plaintiff had not been diligent in obtaining service upon Richard Mac Farlane.

At the hearing on the motion Daily, his attorneys Tryner and Troha, and Masters testified in regard to the efforts made to locate the Mac Farlanes. Charlene Mac Farlane also testified. She stated that her late husband's surname was "Mac Farlane" and had never been "Mac Farland." She further stated that until about 1970 she and her husband lived in Hickory Hills. They then moved to North Riverside, where they lived until 1971 when they moved to 136 Creekwood, Lemont. In 1973 or 1974 the Mac Farlanes moved to Lockport. Their address was listed in the Lockport directory until Richard Mac Farlane's death in December of 1975. In addition, a photocopy of an Illinois State Police accident report was introduced at the hearing. The report states, inter alia, that Clarence "Daley" and Richard Mac Farlane of 8641 S. 82nd Avenue, Hickory Hills, were involved in an accident on Bloggett Road at I-55 on May 22, 1968. Charlene Mac Farlane obtained the report by writing a letter requesting a copy to the accident report division of the Illinois State Police. On January 10, 1978, the trial court dismissed the plaintiff's complaint with prejudice.

The only issue presented in this case on appeal is whether the trial court erred in dismissing the plaintiff's complaint pursuant to Supreme Court Rule 103(b). In disposing of this issue, we will utilize a two-step analysis: First, were the plaintiff and his counsel reasonably diligent in their efforts to serve the late Richard Mac Farlane; second, if the plaintiff and his attorneys were not reasonably diligent, did the defendant nonetheless waive the right to object under Rule 103(b) by participating in the early stages of the litigation.

The applicable Supreme Court Rule, Rule 103(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 103(b)) reads in pertinent part:

"(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. * * *."

• 1, 2 The standard for determining "reasonable diligence" is an objective one, and the burden is upon the plaintiff to show that he has exercised reasonable diligence in his efforts to obtain service. (Piscitello v. Barton (1978), 66 Ill. App.3d 451, 384 N.E.2d 47.) The courts> that have been faced with this issue in the past have looked at six factors in determining whether plaintiff's efforts to obtain service reflect reasonable diligence. These factors are: The length of time used to obtain service; the activities of the plaintiff; any knowledge on the part of the plaintiff of defendant's location; the ease with which the defendant's whereabouts could have been ascertained; the actual knowledge of defendant of the pendency of the action; and special circumstances which would affect the plaintiff's efforts. Licka v. William A. Sales, Ltd. (1979), 70 Ill. App.3d 929, 388 N.E.2d 1261; Piscitello v. Barton (1978), 66 Ill. App.3d 451, 384 N.E.2d 47; Faust v. Michael Reese Hospital & Medical Center (1978), 61 Ill. App.3d 233, 377 N.E.2d 1040; Montero v. University of Illinois Hospital (1978), 57 Ill. App.3d 206, 372 N.E.2d 1010; Alsobrook v. Cote (1971), 133 Ill. App.2d 261, 273 N.E.2d 270.

Applying these factors to the case at bar, we find that the defendant Hartley was served 8 years, 7 months, and 27 days after the occurrence, and 6 years, 7 months, and 28 days after the action was originally filed. Concerning the plaintiff's activities during this time, we have heretofore set forth in some detail the efforts made by Daily, Tryner, and Troha to obtain service. It is obvious that neither the plaintiff nor his attorneys had any knowledge of Mac Farlane's whereabouts prior to service upon the public administrator. Had they known, they would not have expended their time and effort in searching telephone directories. However, it seems equally as obvious that Mac Farlane's location could have been ascertained with little difficulty. Certainly the fact that Mac Farlane and his wife lived in several different communities from 1969-1975 hindered plaintiff's efforts to obtain service, as did the confusion surrounding Mac Farlane's surname. Nevertheless, plaintiff could have easily discovered Mac Farlane's real name and address by subpoenaing the records of the pipefitters' union local. In addition, the ease with which Mrs. Mac Farlane obtained the accident report from the State Police makes it evident that plaintiff should have obtained the report with equal ease. As concerns the final two factors to be considered by the court in ...

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