Hinz v. Chicago Transit Authority

• Decision Date: 18 June 1971
• Docket Number: Gen. No. 54932
• Citation: 273 N.E.2d 427,133 Ill.App.2d 642
• Parties: Anna Mae HINZ, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 427

273 N.E.2d 427

133 Ill.App.2d 642

Anna Mae HINZ, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, municipal corporation, Defendant-Appellee.

Gen. No. 54932.

Appellate Court of Illinois, First District, Fifth Division.

June 18, 1971.

As Modified on Denial of Rehearing Aug. 13, 1971.

Norman Wexler, Wexler & Wexler, Chicago, Marvin Jacobson and Paul M. Heller, Chicago, of counsel, for appellant.

George J. Schaller, O. R. Hamlink, Jerome F. Dixon, Charles F. White, Chicago, for appellee.

LORENZ, Justice.

At the conclusion of a jury trial a verdict was rendered in favor of plaintiff. Defendant then filed its written motion for a directed verdict alleging plaintiff's failure to plead and prove the six month notice required by the Metropolitan Transit Authority Act statute. ¹ Defendant's motion was granted and judgment was entered in favor of defendant notwithstanding the verdict. On appeal plaintiff contends that action of the trial court was improper.

On October 17, 1963, plaintiff was injured as a result of a collision between an automobile she was operating and a vehicle operated by an agent of defendant. In her complaint, filed on October 16, 1964, plaintiff failed to aver the abovementioned notice. Defendant's answer was silent with respect to plaintiff's failure to plead notice. Throughout the course of the trial no objection was made by defense counsel concerning plaintiff's complaint. However, at the close of plaintiff's case in chief, defendant made an oral motion for a directed verdict without specifying any grounds therefor. This motion was denied. At the close of all evidence defendant again made an oral motion for a directed verdict without stating any reasons therefor. The judge however refused to entertain an oral motion at that time, but did allow five days for the filing of a written motion and reserved his ruling thereon. While the jury was deliberating the trial judge attempted unsuccessfully to effect a $5,000.00 settlement between the litigants. Subsequently the jury rendered a verdict in favor of plaintiff for $18,000.00 upon which the court entered judgment.

Within the time allowed by the court, defendant filed a written motion for a directed verdict which alleged that plaintiff's failure to plead and prove the required notice was fatal to her cause of action. During the hearing on that motion it was pointed out that this question was discussed by the parties at a pre-trial conference. At that conference the trial judge brought up plaintiff's failure to allege notice to defendant and suggested that plaintiff file an amended complaint. Plaintiff immediately produced a notice which apparently conformed to the statutory requirements, showing on its face that it had been filed with the required parties on February 17, 1964. Defense counsel did not voice any objection to the production of this notice nor did he deny its authenticity. His only comment was to the effect that he did not have a copy of the notice in his file. As the hearing on the defendant's post-trial motion drew to a close, plaintiff requested leave to file an amended complaint alleging the required notice. In denying plaintiff's motion the court indicated such amendment would have been improper because there was no proof of the notice in the record. The court then granted defense motion for a directed verdict and entered judgment notwithstanding the verdict. Later, at a hearing on plaintiff's post-trial motions, the trial judge said 'Now they've got to learn, maybe the hard way, but that's it. I suggested originally five thousand dollars. If you want it, I'll make him pay it. If you don't want it, go upstairs.' After plaintiff refused the offer, his post-trial motions were denied.

Defendant cites many cases in support of its contention that the six month notice required by statute (which is set out in footnote 1) must be pleaded and proved. Those cases relate to both the aforementioned statute governing suits against a Metropolitan Transit Authority and a similar statute (Ill.Rev.Stat.1969, ch. 85, § 8--102) governing suits for personal injuries against cities, villages and towns. In Erford v. City of Peoria, 229 Ill. 546, 82 N.E. 374 (1907) the court held that the bringing of suit within the six month period did not satisfy the requirement of the statute that notice be filed with the defendant within six months from the date of injury. The court in Ouimette v. City of Chicago, 242 Ill. 501, 90 N.E. 300 (1909) held that notice filed with defendant, which incorrectly stated the date of the occurrence giving rise to the cause of action, was faulty and did not satisfy that requirement of the statute which required the date of the injury to be set out. Minnis v. Friend, 360 Ill. 328, 196 N.E. 191 (1935) held that an unsigned notice did not satisfy the requirements of the statute in view of the statute's plain language which required the notice to be signed. Hayes v. Chicago Transit Authority, 340 Ill.App. 375, 92 N.E.2d 174 (1950) involved a situation in which no statutory notice was filed. The plaintiff contended that a statement elicited from and signed by her which was given to an investigator sent by defendant satisfied the requirements of the statute. The court however held the statute was not satisfied. In Frowner v. Chicago Transit Authority, 25 Ill.App.2d 312, 167 N.E.2d 26 (1960) the court held that a notice, defective as to the date of the injury, did not fulfill the requirements of the statute. None of these cases are applicable to the facts of the instant case.

In Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651 (1909) the defendant made a timely demurrer to plaintiff's complaint which had the effect, at the outset of the proceedings, to call plaintiff...