148 Ill. App. 505 | Ill. App. Ct. | 1909
delivered the opinion of the court.
In the view taken by us of this ease it is only necessary to decide two questions—first, whether the notice was a sufficient legal notice under the statute; and second, if not, whether the question of the sufficiency of the notice was properly raised by the defendant on the trial so as to be open to review here.
The accident happened October TO, 1905, but the statutory notice given to the defendant by the plaintiff states that it occurred November 10th.
Section 2 of the Act of 1905 (Hurd’s Stat. 1905, p. 1154) 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).” Section 3 provides that if the notice provided for in section 2 is not given as therein required, any such suit brought against any such city shall be dismissed, and the party suffering such dismissal shall be forever barred from suing on account of such injury.
In Erford v. Peoria, 229 Ill. 546, it was held that the giving of the notice required by the statute was a condition precedent to the right to bring a suit against the municipality for damages on account of a personal ■ injury, the performance of which must be averred and proved by the plaintiff to enable him to maintain his suit. The language of the statute is clear and positive. It requires the notice to be in writing and to give, “the date and about the hour of the accident.” There can be but one “date” of the accident, and that is the day on which it occurred. To hold that under this statute the plaintiff may, in his notice, state that the accident occurred on a day other than the true one, would be in effect to repeal the statute rather than to construe it. The statute requires the date to be stated, and this certainly cannot be done by stating that the accident occurred on a day on which it did not occur. Gardner v. New London, 63 Conn. 267.
We think that the notice given by the plaintiff in this case was fatally defective and gave to the plaintiff no right to maintain an action for the injury which he sustained on October 10, 1905. His right to maintain his action for that injury depends on the sufficiency of his notice, and it is immaterial what notice the defendant may have had of the time of the injury from other sources. Gardner v. New London, supra.
The contention that the question of the effect of the failure to give a statutory notice is not open for review because the defendant, in place of moving that the suit be dismissed for failure to give such notice, asked for a peremptory instruction to find the defendant not guilty cannot, we think, be sustained in view of the decision in Erford v. Peoria, supra. In that? case no notice was given; the defendant did not move to dismiss but asked a peremptory instruction to find the defendant not guilty, which was given, and a judgment on the directed verdict was affirmed on the sole ground that the statutory notice was not given. In this case, as has been said, the notice given by the plaintiff was fatally defective and cannot be held a notice of the “date’5 of the accident.
We think that the peremptory instruction to find the defendant not guilty should have been given for the reason that the plaintiff failed to give the notice the statute required him to give as a condition precedent to his right to bring this suit, and for the error in refusing to give such instruction the judgment will be reversed. The plaintiff having failed to give to the defendant the notice the statute required him to give of his injury as a condition precedent to his right to bring action therefor, the judgment will be reversed with a finding of facts, and the cause will not be remanded.
Judgment reversed with finding of facts.
