Walters v. City of Ottawa

• Decision Date: 16 June 1909
• Citation: 240 Ill. 259,88 N.E. 651
• Parties: WALTERS v. CITY OF OTTAWA.
• Court: Illinois Supreme Court

240 Ill. 259

88 N.E. 651

WALTERS

v.CITY OF OTTAWA.

Supreme Court of Illinois.

April 23, 1909.

Rehearing Denied June 16, 1909.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.

Action by Lillian Walters against the City of Ottawa. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.Butters & Armstrong, for appellant.

Browne & Wiley, for appellee.

On August 28, 1900, the appellee was injured by reason of a defective sidewalk over which she was passing, in the city of Ottawa. On September 15th and 18th, respectively, she filed with the city attorney, and the city clerk the notices required by section 2 of the act of May 13, 1905, ‘concerning suits at law for personal injuries and against cities, villages and towns' (Hurd's Rev. St. 1908, p. 1186, c. 70), and on September 25th she began an action on the case against the city for her injuries, and filed a declaration consisting of three counts, neither of which contained any reference to the notices. The city pleaded the general issue, but on November 20, 1907, withdrew this plea, and filed a demurrer to the declaration, which was sustained. Appellee thereupon amended her declaration by adding to each count averments, showing the giving of the notices, setting out copies thereof. The city again pleaded the general issue, and also the one-year statute of limitations. The court sustained a demurrer to the plea of the statute of limitations. The cause went to trial on the general issue, and a verdict of $1,000 was rendered against the appellant, on which judgment was rendered. The Appellate Court, having affirmed the judgment, granted a certificate of importance, and the city has appealed to this court.

DUNN, J. (after stating the facts as above).

We held in Erford v. City of Peoria, 229 Ill. 546, 82 N. E. 374, that the act in question is a valid enactment, and that the giving of the notices required by it was a condition precedent to the right to bring a suit against the municipality, the performance of which must be averred and proved by the plaintiff to enable him to maintain his suit. The rule of pleading is well established in this state that, where a declaration fails to aver a cause of action, the beginning of the suit does not stop the running of the statute of limitations in favor of amended counts or additional counts which may be filed in the cause, and which do state a cause of action, but the suit will be regarded as begun, so far as such counts are concerned, at the time they are filed. Bahr v. National Safe Deposit Co., 234 Ill. 101, 84 N. E. 717. Many decisions are referred to in the case cited illustrating the application of the principle, and there are many others.

Did the original declaration state a cause of action? It stated facts which would have enabled the plaintiff to maintain an action before the passage of the statute referred to. But this legislation has added a new element to those required to make a city liable to an action of this kind. It is not enough now, as it formerly was, that the city has been negligent in the maintenance of its sidewalk, and the plaintiff, while exercising due care, has been injured in consequence of such negligence. 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. Starling v. Bedford, 94 Iowa, 194, 62 N. W. 674;Gay v. Cambridge, 128 Mass. 387;Clark v. Tremont, 83 Me. 426, 22 Atl. 378. ‘Cause of action’ includes every fact necessary for the plaintiff to prove to entitle him to succeed—every fact that the defendant would have a right to traverse. It has been said to be the right to prosecute an action with effect. Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384. The terms ‘right of action’ and ‘cause of action’ are equivalent expressions. Clark v. Heirs of Southard, 16 Ohio St. 408. ‘By this phrase [cause of action] is understood the right to bring an action, which implies that there is some person in existence who can assert, and also a person who can lawfully be sued. * * * There is no cause of action till the claimant can legally sue. Bouvier's Dict. title, ‘Cause of Action.’ * * * If he have no legal right to sue, he has not merely a bad cause of action, but no cause of action.' Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588. A cause of action accrues when facts exist which authorize one party to maintain an action against another. Davis v. Munie, 235 Ill. 620, 85 N. E. 943. It is not possible for one at the same time to have a cause of action and not to have the right to sue. The statutory notice is as essential to the plaintiff's cause of action as is a demand in replevin of a defendant whose possession was originally lawful, and who has done nothing to make it unlawful. It is elementary that a declaration must allege all the circumstances necessary for the support of the action, and that, if any act is to be done by the plaintiff before the accruing of the defendant's liability, the performance of that act must be averred. A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of action. In other states having a statute similar to ours the courts have frequently decided that the giving of the notice is an essential part of the cause of action, and that, without an averment of the fact of notice, a complaint does not state facts sufficient to constitute a cause of action. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792;Wentworth v. Town of Summit, 60 Wis. 281, 19 N. W. 97;Dorsey v. City of Racine, 60 Wis. 292, 18 N. W. 928;Sowle v. City of Tomah, 81 Wis. 349, 51 N. W. 571;Pardey v. Mechanicsville, 101 Iowa, 266, 70 N. W. 189;City of Lincoln v. Grant, 38 Neb. 369, 56 N. W. 995.

It is contended that the amended counts merely stated over, in different form, the causes of action defectively set out in the original counts. If the original declaration states a cause of action, however defectively, provided it is sufficient to sustain a judgment, an amendment is permissible amplifying the statement of the same cause of action, and will relate back to the filing of the original declaration, so as not to be subject to the intermediate running of the statute of limitations. But this principle has no application here, where no cause of action was stated in the original declaration, and where that declaration was insufficient to sustain a judgment. The rule as to aider by verdict is stated by Chitty as follows: ‘Where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by verdict. The expression ‘cured by verdict’ signifies that the court will, after a verdict, presume...