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Luethi v. Yellow Cab Co.





Appeal from the Circuit Court of Cook County; the Hon. Mary Heftel Hooton and the Hon. John G. Laurie, Judges, presiding.


Plaintiff, Marietta Luehti, brought this personal injury action for injuries she allegedly sustained when the vehicle in which she was riding, owned by defendant Yellow Cab Company, Inc., and driven by Yellow Cab's lessee, defendant Peter Nikolos, ran off the road. The circuit court struck plaintiff's two-count complaint on defendant Yellow Cab's motion, with leave to plaintiff to file an amended complaint within 28 days. Just prior to that hearing plaintiff had filed an amended count against Yellow Cab. After the hearing plaintiff filed an amended count seeking damages solely from defendant Nikolos. After more than 28 days had passed the court dismissed defendant Yellow Cab from the suit for failure of plaintiff to file an amended complaint as to Yellow Cab. Plaintiff appeals from that order as well as from the court's earlier order striking plaintiff's complaint against Yellow Cab.

We reverse and remand.

On September 12, 1983, plaintiff filed a one-count complaint against only Yellow Cab, based on the alleged negligence of Yellow Cab's agent, the driver of the car, whose name was not yet known to plaintiff. The complaint alleged that on September 18, 1981, plaintiff was a passenger for hire in Yellow Cab's vehicle, driven by Yellow Cab's agent, John Doe. That then-unidentified driver allegedly failed to keep his vehicle under control and drove it up an embankment, injuring the plaintiff.

Plaintiff subsequently determined that the accident had occurred September 13, 1981, and obtained leave of court to amend her complaint on its face to reflect that date. However, the complaint was not so amended. Subsequently plaintiff learned through discovery that on the date in question the cab had been leased to Peter Nikolos. Plaintiff obtained leave of court to amend her complaint to substitute Nikolos, as lessee, in lieu of John Doe, and to file an additional count. Again plaintiff did not amend the original complaint, but she did file a second count based on the alleged wilful and wanton conduct of Yellow Cab. In pertinent part that count alleges:

"2. (A) That on [Sept. 13, 1981] there was in full force and effect an Ordinance, titled `PUBLIC CHAUFFEURS' under Chapter 28.1.12 of the Municipal Code of Chicago, which provided, `It is unlawful for any person to drive a public passenger vehicle on any public way for the transportation of passengers for hire from place to place within the corporate limits of the city without first having obtained a license as a public chauffeur. (Passed, 12-20-51, Coun. J. p. 1601) (B) That PETER NIKOLOS, the defendant's Lessee, was not so licensed.

3. That because of a non-qualified driver, as indicated in Chap. 28, 1-3 (2)a-f of the foregoing Ordinance, to whom the defendant YELLOW CAB CO. leased its cab in wilful and wanton disregard of the above and other related Ordinances and Statutes regarding same, the plaintiff suffered injuries in consequence and as a result of the said driver's `gross negligence in failing to keep his vehicle under control,' as alleged in Par. 4, of Count I, which is incorporated as par. 3 of this Count II, by reference.

4. Plaintiff refers to and re-alleges Par. 5 of Count I, as par. 4 of this Count II, with the exception of the word `negligence,' for which the plaintiff substitutes the words, `wilful and wanton conduct'.

WHEREFORE, plaintiff prays judgment for $15,000 plus punitive damages and costs."

Paragraph 5 of count I (referred to in paragraph 4 above, stated:

"As a result of the negligence of the defendant, the plaintiff suffered * * * injuries * * *, has lost earnings, has incurred medical and hospital expenses, to her damage $10,000.00 [sic]."

On October 22, 1984, Yellow Cab moved to strike this new count on the grounds that plaintiff's various amendments made it difficult to decipher the complaint and that plaintiff had improperly pleaded wilful and wanton conduct merely by substituting the words "wilful and wanton conduct" for the word "negligence" in his original complaint. The hearing on Yellow Cab's motion to strike was set for November 20, 1984, before the Honorable Mary Hooton. However, on November 14, 1984, plaintiff filed a notice of motion, to be heard November 15, 1984, before the Honorable John G. Laurie, for leave to file an amended count II. The motion was ultimately continued for hearing before Judge Hooton at the same time as Yellow Cab's motion to strike.

The record establishes that at 9:21 a.m. on November 20, 1984, prior to the scheduled start of the hearing, plaintiff filed her amended count II against Yellow Cab. We summarize that count later in this opinion. Following the hearing, which was apparently not transcribed, the court granted Yellow Cab's motion to strike plaintiff's "complaint and amendments to [her] complaint" but granted her 28 days to file an amended complaint. That same day plaintiff filed an amended count I seeking damages solely from defendant Nikolos. Plaintiff filed no additional counts and on January 7, 1985, Judge Laurie, on Yellow Cab's motion, dismissed Yellow Cab with prejudice "for the plaintiff's failure to file amended complaint [sic] pursuant to Court's order dated November 20, 1984." Plaintiff was granted leave of court to file an amended complaint against Peter Nikolos and to issue summons against him. The record does not establish whether the court made any statements concerning this ruling at the hearing on January 7, 1985.

In this court Yellow Cab has moved to dismiss this appeal for what it terms the incoherence of plaintiff's initial brief. Although the plaintiff's briefs and argument before this court have been very difficult to decipher, we deny Yellow Cab's motion in the interest of justice to the ...

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