Minnis v. Friend

• Decision Date: 05 June 1935
• Docket Number: No. 22557.,22557.
• Citation: 196 N.E. 191,360 Ill. 328
• Parties: MINNIS v. FRIEND et al.
• Court: Illinois Supreme Court

360 Ill. 328

196 N.E. 191

MINNIS

v.FRIEND et al.

No. 22557.

Supreme Court of Illinois.

April 12, 1935.

As Modified on Denial of Rehearing June 5, 1935.

Action by Frank Minnis against Arnold Friend and the City of Chicago. Judgment for plaintiff, and defendants appeal.

Reversed as to defendant City of Chicago, affirmed as to defendant Friend.

SHAW, J., dissenting.Appeal from Circuit Court, Cook County; John Prystalski, judge.

Anson H. Brown and Charles E. Green, both of Chicago, for appellant Arnold H. Friend.

William H. Sexton, Corp. Counsel, and A. M. Smietanka, City Atty., both of Chicago (Quin O'Brien and Frank H. Novak, both of Chicago, of counsel), for appellant City of Chicago.

Joseph D. Ryan and Edmund M. Sinnott, both of Chicago, for appellee.

FARTHING, Justice.

The appellee, Frank Minnis, recovered a judgment for $15,000 in the circuit court of Cook county against the appellants, Arnold H. Friend and the city of Chicago. The appellee's cause of action was based upon injuries he received when a city fire truck collided with Friend's automobile on July 16, 1933, shortly before 9 o'clock in the morning, at Wells and Monroe streets, in Chicago. The case was tried before a jury, which returned a verdict on December 22, 1932. Motions were made at the close of appellee's evidence and at the close of all the evidence to direct a verdict for the appellants. These motions, and those for a new trial and for a judgment non obstante veredicto, were overruled, and judgment was entered on February 24, 1934. The appeal was brought directly to this court because the constitutionality of ‘An act in relation to the liability for injuries, caused by the operation of motor vehicles by members of municipal fire departments while engaged in the performance of their duties,’ approved July 7, 1931 (Smith-Hurd Ann. St. c. 70, § 9, Cahill's Rev. St. 1933, c. 24, par. 987(1), p. 593) is challenged by the city of Chicago. The appeal is governed by the Civil Practice Act.

The city of Chicago also urges that the notice required by section 2 of ‘An Act concerning suits at law for personal injuries and against cities, villages and towns' (Smith-Hurd Ann. St. c. 70, § 7; Cahill's Rev. St. 1933, c. 70, par. 7, p. 1570) was fatally defective because it was not signed as therein required. Both the appellants contend that the verdict and judgment are contrary to the law and the evidence; that the verdict is the result of passion and prejudice and the amount of the damages is excessive; and that the court erred in instructing the jury.

The language of the statute relating to suits for injuries against cities determines whether the notice given to the city is defective. It is provided in section 2 (Smith-Hurd Ann. St. c. 70, § 7): ‘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).’ Section 3 (Smith-Hurd Ann. St. c. 70, § 8) provides: ‘If the notice provided for by section two of this act shall not be filed as provided in said section two, then any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.’

The notice which was given to the city was not signed by any one. The objection was that the statute required it to be signed. The objection was overruled, and the notice was received in evidence.

The act in question is a valid enactment, and the filing of the statement or notice required by section 2 is a condition precedent to the right to maintain the suit. Walters v. City of Ottawa, 240 Ill. 259, 263, 88 N.E. 651;Condon v. City of Chicago, 249 Ill. 596, 94 N. E. 976. In Ouimette v. City of Chicago, 242 Ill. 501, 90 N. E. 300, 302, the notice stated that the accident occurred on November 10, 1905, instead of October 10, 1905, when the accident had occurred. In holding that notice insufficient we said: ‘The question of this notice is entirely within legislative control. The Legislature may prescribe the conditions under which cities shall be held liable to persons injured while using streets and sidewalks. Walters v. City of Ottawa, supra; Curry v. City of Buffalo, 135 N. Y. 366, 32 N. E. 80. It has prescribed in this statute that the notice shall give the date of the accident. From the reasoning in the two cases already cited, heretofore decided by this court, it must be held that the wrong date in the notice is, in effect, the same as if no date at all were given. The statute requires the date to be set out in the notice, and this certainly cannot be done by stating that the accident occurred on a date on which it did not occur. Gardner v. New London, 63 Conn. 267, 28 A. 42,’ and other cases.

Appellee relies upon the case of McComb v. City of Chicago, 263 Ill. 510, 105 N. E. 294. There we held a notice gave a sufficient description of the place or location of the accident when it stated that it occurred ‘at or near the corner of Thirty-Ninth street and Campbell avenue.’ It was objected that it did not state specifically the corner at which the accident occurred. We said that the purpose of the statute was to enable the city authorities, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain the conditions alleged to have existed which caused the injury, and that no particular form of notice is required by the statute. What we said necessarily had reference only to the facts of that case. There had been an attempt to comply with the statute, and our holding was that location had been given which was sufficiently definite to comply with the statute. The McComb Case would be applicable if there had been some attempt to comply with the requirement of the statute that the notice be signed and if the question were as to the sufficiency of the signature. No reason appears to us why the plain terms of the statute should not be followed. It requires, not only that the notice be given, but that it be ‘signed by such person, his agent or attorney’ (section 2), and provides that, if the notice ‘shall not be filed as provided in said section two, then any such suit brought against any such city shall be dismissed,’ etc. (section 3). Since the Legislature has made the giving of this statutory notice a condition precedent to liability, a notice which does not contain one of the essentials prescribed therein is not a compliance with the statute. The notice should not have been admitted in evidence, and the motion to direct a verdict for the city of Chicago at the close of the plaintiff's evidence should have been allowed. The judgment must therefore be reversed as to the city of Chicago. The constitutional question raised and the other assignments of error made by the city of Chicago need not be considered. City of Chicago v. Brent, 356 Ill. 40, 190 N. E. 97.

Appellee was injured as a result of a daytime collision between the vehicles of the two appellants. He was on the sidewalk near the northwest corner of the intersection of Wells and Monroe streets, in the loop district in Chicago. No claim is made that he was guilty of contributory negligence. The fire truck came north on Wells street and collided with Friend's automobile, which he was driving west on Monroe street. The truck driver, Joseph Jeffries, swerved to his left, and after the collision the truck got out of his control. It ran up onto the sidewalk on the west side of Wells street, north of Monroe street, struck the appellee, and was finally stopped by a fire hydrant. Jeffries testified that an alarm was turned in at the fire engine house at 214 Lomax place at about 8:40 on the morning of the collision. He turned on the siren when he left the engine house. This siren was operated by the flywheel, and it sounded continuously until after the accident. He drove the truck north on Wells street. When the driver saw Friend's automobile coming into Wells street he swung his truck to his left to avoid Friend's car, but it struck the truck on its right side near the door. Jeffries was thrown against the windshield of the truck, lost control of it, and it ran up onto the sidewalk and was stopped by the hydrant, as already described. He testified that, as he approached Monroe street, the traffic light at the street intersection changed from red to yellow.

E. T. Sabin, another witness for appellee, testified that he heard a siren making an ‘awful racket’ when he was walking north on Wells street and was about one hundren feet south of Monroe street. He stepped to the curb to learn from whence this sound came. He noticed a sedan on Monroe street and saw some one waving his arms and attempting to stop that automobile. He said the driver of this sedan hesitated and then proceeded into the street intersection. In his opinion the fire truck was moving at from thirty-five to forty miles an hour and the sedan at from seven to ten miles an hour when the driver hesitated and at fifteen miles an hour or more after Friend increased the speed of his car. This witness could hear the noise of the siren above the noise of the surface traffic and the elevated trains which run above Wells street.

Peter Klatt testified as a witness for appellee. He was at the northeast corner of the street intersection when he heard the siren on the fire truck....