Riddle v. City of Marion
| Decision Date | 24 October 1963 |
| Docket Number | Gen. No. 63-0-5 |
| Parties | Nell RIDDLE, Plaintiff-Appellant, v. CITY OF MARION, Illinois, a Municipal Corporation, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Ralph W. Harris, Marion, for appellant.
Franklin, Garrison, Bleyer, Marion, Norbert Garrison, Marion, of counsel, for appellee.
This is a suit for personal injuries arising out of plaintiff's falling upon defendant's sidewalk.
Pursuant to Section 1-4-2 of the Municipal Code, Ill.Rev.Stat.1961, c. 24, § 1-4-2, plaintiff served a notice of her injury upon the City, but she gave the date of the injury as October 5, rather than September 5, 1961, the correct date. Her complaint, although filed within the time prescribed by Section 1-4-1 of said Municipal Code, also incorrectly gave the date of the occurrence as October 5, 1961.
On April 26, 1962 defendant moved to dismiss the complaint because the date of the occurrence in the notice was incorrect. On November 5, 1962 plaintiff moved to amend the complaint to correct the occurrence date in the Complaint from October 5 to September 5, 1961. On January 21, 1963 the motion to amend was denied, the motion to dismiss allowed, and a final order that defendant go hence without day entered. From these orders this appeal follows.
This case involves the construction to be placed upon the following sections of the Municipal Code:
The above sections of the Code and the earlier sections from which they were derived, have been consistently interpreted by our courts. In Erford v. City of Peoria 229 Ill. 546, 553, 82 N.E. 374, 376 the Supreme Court said:
'Statutes of this character are mandatory, and the giving of the notice is a condition precedent to the right to bring such suit.'
The Erford case was reaffirmed in the later case of Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651. In that case the court said at page 263 of 240 Ill., at page 653 of 88 N.E.:
'The giving of the notices required by the statute has been made a condition precedent to the city's liability, and constitutes an essential element of the plaintiff's cause of action. The statute expressly declares that, if the required notice is not given, any suit brought shall be dismissed, and the plaintiff barred from further suing.
The city has no power to waive the notice, and is under no liability until it is given.'
And at page 267 of 240 Ill., at page 654 of 88 N.E. the court stated that the conditions required by the legislature to be performed by a person who seeks to recover damages from a municipality are not mere matters of procedure but acts 'essential to perfect his claim.'
Following the Walters decision, the Supreme Court decided Ouimette v. City of Chicago, 242 Ill. 501, 90 N.E. 300, a case nearly on all fours with the instant suit. In that case the notice to the city stated that the occurrence happened on November 10, 1905 when, in truth, the actual date was October 10, 1905. In holding that this error in the notice was fatal to the plaintiff's case, the court said at pages 507-508 of 242 Ill., at page 302 of 90 N.E.:
...
To continue reading
Request your trial
-
Rapacz v. Township High School Dist. No. 207
...Hospital District, 106 Ill.App.2d 255, 257, 245 N.E.2d 262 (actual notice cannot replace formal statutory notice); Riddle v. City of Marion, 44 Ill.App.2d 11, 193 N.E.2d 877 (one month discrepancy in the date); and Frowner v. Chicago Transit Authority, 25 Ill.App.2d 312, 167 N.E.2d 26 (vari......
-
Stewart v. County of Cook
...Ill.App.2d 431, 263 N.E.2d 138 (notice defective because of one-day error in date of injury given in notice), Riddle v. City of Marion (1963), 44 Ill.App.2d 11, 193 N.E.2d 877 (one-month error in date of injury), and Frowner v. Chicago Transit Authority (1960), 25 Ill.App.2d 312, 167 N.E.2d......
-
Schroeder v. Community Unit School Dist. No. 2 of Macoupin County
...law right and that it should be construed strictly against the municipal corporation asserting it. These cases are: Riddle v. City of Marion, 44 Ill.App.2d 11, 193 N.E.2d 877, holding the giving of a wrong date of accident fatal to the notice; Walters v. City of Ottawa, 240 Ill. 259, 88 N.E......
-
Williams v. City of Gibson, Gen. No. 11216
...same effect are: Frowner v. Chicago Transit Authority, 25 Ill.App.2d 312, 167 N.E.2d 26 (1st Dist.1960); Riddle v. City of Marion, 44 Ill.App.2d 11, 193 N.E.2d 877 (4th Dist.1963). The action of the trial court was in accord with Ouimette and that decision is likewise controlling here. The ......