McDonald v. City of Spring Valley
| Decision Date | 21 October 1918 |
| Docket Number | No. 12174.,12174. |
| Citation | 120 N.E. 476,285 Ill. 52 |
| Parties | McDONALD v. CITY OF SPRING VALLEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Bureau County; Joe A. Davis, Judge.
Action by Margaret McDonald, by Patrick McDonald, as next friend, against the City of Spring Valley. From judgment for plaintiff, defendant appealed to the Appellate Court for the Second District, which reversed without remanding, and plaintiff appeals. Judgment of the Appellate Court reversed, and judgment of the trial court affirmed.
J. L. Spaulding, of Princeton, and C. N. Hollerich, of Spring Valley, for appellant.
M. P. Cornelius, of Chicago, and J. E. Malone, Jr., of La Salle (Manton Maverick, of Chicago, of counsel), for appellee.
The appellant, Margaret McDonald, by Patrick McDonald, her next friend, brought her suit in trespass on the case against the city of Spring Valley, appellee, in the circuit court of Bureau county, charging appellee with negligence which resulted in the loss of the third finger of her left hand. Appellee filed a general and special demurrer to the declaration; the grounds for the special demurrer being that appellant did not comply with the requirements of the statute relative to the giving of notice to appellee of the injury complained of, and that under the facts alleged in the declaration she was not excused from complying with the statute on account of her minority or her mental or physical disability. The court overruled the demurrer, and, appellee having elected to stand by its demurrer, a jury was called, and damages were assessed in the sum of $1,000, upon which verdict the court rendered judgment. On appeal to the Appellate Court for the Second District, the judgment of the circuit court was reversed without remanding, and, a certificate of importance having been granted, the cause was brought to this court for further review by appeal.
The declaration alleges that appellee permitted a building to be erected and maintained in one of its streets as a place of amusement, in which appellant, through the negligence of appellee, received the injury complained of on June 24, 1916; that on March 14, 1917, appellant filed in the offices of the city attorney and city clerk of appellee a statement in writing signed by her, giving her name, the date and about the hour of the accident, the place and location where the accident occurred, and the address of the attending physician; that appellant on June 24, 1916, and on March 14, 1917, was a minor of the age of seven years; that on those dates, on account of her tender years, she did not know and was not informed by any one of the provisions of the statute concerning suits at law for personal injury against cities, villages, and towns; and that on account of her tender years and her physical and mental incapacity it was impossible for her to give to the city attorney or the city clerk, or to any one whomsoever, the notice required to be given by said statute, or to know, comprehend, understand, or comply with the terms and requirements of that statute.
The act referred to in the declaration is as follows:
‘Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician (if any).’ Hurd's Stat. 1917, p. 1663.
It is the contention of appellant that the admitted facts set up in the declaration constitute a good and complete cause of action. and that under the law she was not required to do more than it was admitted she had done in order to entitle her to recover, for the reason that the laws of this state did not require her, under the admitted facts disclosed by the pleadings, to serve a notice within six months after the injury to entitle her to recover. Appellant insists that under a proper construction of this statute one in her condition is excepted from its operation, and that because of her mental incapacity the statute does not apply to her and she is not required to give the statutory notice within six months after receiving the injury. The allegations of the declaration must be taken as true and it must be conceded, as is done by counsel for appellee, that appellant was mentally incapable of giving the notice required...
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...100 N.M. at 332, 670 P.2d at 586, citing City of Barnesville v. Powell, 124 Ga.App. 132, 183 S.E.2d 55 (1971); McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476 (1918); Grubaugh v. City of St. John's, 384 Mich. 165, 180 N.W.2d 778 (1970); Lazich v. Belanger, 111 Mont. 48, 105 P.2......
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...[the minor's] right of action be frittered away because of the omission of the parents to give notice."); McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476, 478 (Ill.1918) ("A child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement ......
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...and proved by the plaintiff to avoid a dismissal of his suit." (229 Ill. 546, 553, 82 N.E. 374, 376.) In McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476, involving the same statute, the court held that the action of a minor child was not barred by reason of failure to gi......
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