dissenting:
I respectfully dissent.
The plaintiff filed a complaint that was dismissed for want of prosecution. After the statute of limitations had run but within a year of the dismissal, the plaintiff commenced the instant action. The only issue on appeal is whether the plaintiff is entitled to refile her action under section 13 — 217 of the Code of Civil Procedure. Under this section, after an action is dismissed for want of prosecution, a plaintiff “may commence a new action within one year,” even though the statute of limitations has expired. Ill. Rev. Stat. 1987, ch. 110, par. 13— 217.
The majority holds that section 13 — 217 does not apply because the original complaint was not an action and was in effect a nullity. Consequently, the majority concludes, the present case is the first filing of the complaint and not a “new action” and as such is barred by the statute of limitations.
I agree with the majority that the case of Gibbs v. Crane Elevator Co. (1899), 180 Ill. 191, 54 N.E. 200, is relevant to the issue before the court. However, I believe that Gibbs supports the conclusion that the plaintiff is entitled to refile her action under section 13 — 217. Gibbs involved the application of a refiling statute similar to section 13 — 217. In the original lawsuit, the plaintiff only filed a praecipe. The action was dismissed for failure to file a declaration. Within one year of the dismissal of the first suit, the plaintiff began a new action. The court stated that the statute concerning refiling would only apply if the record showed that the two suits were for the identical claim or cause of action. Since the praecipe stated no facts, the record was devoid of facts concerning the first suit. Without any facts concerning the first suit, there filing could not be shown to be the same and consequently it was not allowed.
The significance of Gibbs in analyzing the application of refiling statutes is that refiling should be allowed if the record shows that the two suits are for the identical claim or cause of action. This same rationale is at work in section 2 — 616 of the Code of Civil Procedure, which concerns amendments to pleadings. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616.) This section is comparable to the refiling statute in the case at bar in that it allows amendments to a complaint after the statute of limitations. Under section 2 — 616, an amendment may be filed “if it shall appear from the original and amended pleadings that the cause of action asserted *** grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(b).) The clear wording of this section indicates that a complaint may be amended if the action in the amended complaint is the same as the action in the original complaint.
Based on the rationale set forth in Gibbs as well as the clear wording of section 2 — 616 concerning amendments to pleadings, I believe that the answer to the question of whether the plaintiff is entitled to refile her action under section 13 — 217 hinges on a determination of whether the second action is the same as the first. While the facts in the original complaint are admittedly deficient, they are slightly more expansive than the majority suggests. The complaint identifies Thorek Hospital and Medical Center and names the doctors as agents of the hospital. The complaint identifies the decedent as a person under the care of the hospital and of its employees. It states that it was the duty of the hospital, their agents and specifically the doctors to render medical care so as not to negligently cause injury to the decedent. It alleges that the decedent was in the exercise of ordinary care and free from any contributory negligence. It states that on or about June 14, 1982, the decedent entered the hospital and entrusted herself entirely to the care of the defendant hospital and its employees.
The complaint in the second action realleges those facts above and specifically charges the defendants with certain acts of negligence and includes a request for a judgment in excess of $15,000. It is apparent to me that the two suits are identical causes of action. The first suit indicates that there was injury to the decedent as a result of the admission to the hospital on that day and that the injury was a result of some conduct of the hospital and the doctors. As stated above, the second suit realleges the facts in the first action and charges the defendants with certain acts of negligence.
Any deficiencies in the original complaint can be rectified by way of an amendment. However, the deficiencies in the original complaint are not of such a nature that the plaintiff should be barred from refiling her action under section 13 — 217.
For the foregoing reasons, I would reverse the trial court.