Wills v. Metz

• Decision Date: 06 December 1967
• Docket Number: Gen. No. 10901
• Citation: 231 N.E.2d 628,89 Ill.App.2d 334
• Parties: Stephen P. WILLS, a minor, by Orville Wills, his father and next friend, Plaintiff-Appellant, v. Lewis METZ, Individually, Lewis Metz as Road Commissioner of Fayette Township, Livingston County, Illinois, Fayette Township in Livingston County, Illinois, and Livingston County in the State of Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 628

231 N.E.2d 628

89 Ill.App.2d 334

Stephen P. WILLS, a minor, by Orville Wills, his father and next friend, Plaintiff-Appellant, v. Lewis METZ, Individually, Lewis Metz as Road Commissioner of

Fayette Township, Livingston County, Illinois, Fayette

Township in Livingston County, Illinois, and Livingston

County in the State of Illinois, Defendants-Appellees.

Gen. No. 10901.

Appellate Court of Illinois, Fourth District.

Dec. 6, 1967.

S. F. Dolgin, Fairbury, Daniel Karlin, Chicago, for appellant.

Chester Crabtree, State's Atty., Adsit, Thompson, Strock & Strong, Pontiac, for appellees.

CRAVEN, Presiding Justice.

Plaintiff's second amended complaint for personal injuries and property damage against the named defendants was dismissed and judgment entered for the defendants. The action of the circuit court was based solely upon the fact that the complaint was found not to state a cause of action 'by reason of the fact that the * * * Plaintiff failed to serve notice on the Defendants, or any of them, as provided and required by the provisions of Chapter 85, Section 8--102, Illinois Revised Statutes.'

This cause of action arose out of an occurrence on October 19, 1965. The plaintiff was then a minor, having been born on the 27th day of November, 1945. The complaint was filed on August 23, 1966, more than three months prior to the plaintiff's twenty-first birthday. The complaint was filed by the plaintiff's father as his next friend. The only question presented by this appeal is whether or not the plaintiff, as a minor, was required to comply with the notice provisions of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill.Rev.Stat.1965, ch. 85, sec. 8--102.)

This statute, which became effective on August 13, 1965, is essentially the same insofar as here material to earlier statutes that required notices of claims based on injuries. See Ill.Rev.Stat.1965, ch. 122, sec. 823; Ill.Rev.Stat.1963, ch. 24, sec. 1--4--2; Ill.Rev.Stat.1965, ch. 111 2/3, sec. 341; Ill.Rev.Stat.1965, ch. 37, sec. 439.22--1.

In Haymes v. Catholic Bishop of Chicago, 33 Ill.2d 425, 211 N.E.2d 690 (1965), the Illinois Supreme Court discussed the notice requirements of the School Tort Liability Act, and the issue there presented was whether the requirement of giving written notice of injury within six months of the date of injury was binding on minor claimants. The court held that it was not and stated at 428 (211 N.E.2d at 692):

'Moreover we agree with the appellate court that the lenguage of section 3 is virtually identical with the notice-of-claim provision of the Cities and Villages Act (Ill.Rev.Stat.1961, chap. 24, par. 1--4--2), which statute, with only minor changes, is the same today as at the time of enactment in 1905. In 1918, this court in McDonald v. City of Spring Valley, 285 Ill. 52 120 N.E. 476, 2 A.L.R. 1359, held the notice provision of the Cities and Villages Act not applicable to minors, and this case has been followed without exception since. (See Doerr v. City of Freeport, 239 Ill.App. 560; Sobieski v. City of Chicago, 234 Ill.App. 382; Carlson v. Village of Glen Ellyn, 21 Ill.App.2d 335, 158 N.E.2d 225.) It is apparent to us that the legislature in enacting section 3 of the School Tort Liability Act was aware of our holding in McDonald, and therefore must have intended that section not to be applicable to minor claimants. If notice were to be required of a minor who cannot make a legally binding appointment of an agent or attorney, the legislature could have provided for notice by a next friend or...