163 Ill. App. 413 | Ill. App. Ct. | 1911
delivered the opinion of the court.
The plaintiff’s suit was dismissed as set forth in the preceding statement because of non-compliance with the Act of May 13, 1905, entitled “An act concerning suits at law for personal injuries and against cities, villages and towns.” Sections 2 and 3 of the said Act read as follows:
“2. 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).
3. If the notice provided for by Section Two 2 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 only notice given in this case was the one set out in the statement prefixed. It contained no reference to the time of day at which the accident occurred.
One of the assignments of error here insisted on by the plaintiff is that the court below should have allowed an amendment of the notice at the trial. To have given effect to an amendment made at that time would manifestly have defeated the purpose of that part of the statute. That purpose appears plainly from the language of the Act to be that the City shall have information to assist its investigators within six months of an accident, while the means of verification or contradiction are more likely to be at hand.
The accident in this case happened, according to the plaintiff’s statement, on March 2, 1907. The motion to amend the notice by inserting the hour of the day was made on May 10, 1909,—more than two years thereafter. It was properly denied. If the specification of the hour in a notice was essential at all, it was equally essential that it should have been specified in a notice served within six months.
The plaintiff says, however, further, that the specification of the hour in the notice was not essential, because without it the notice was in substantial compliance with the statute. To sustain this proposition counsel cite cases from other States holding that where notice of the time of an accident is required by laws similar to the statute of Illinois, precision as to the hour is not necessary. In one case cited the Supreme Court of New York held that under an Act requiring specification of the “time” it was sufficient to have proven notice that the accident happened on August 5th, although, as a matter of fact, it happened on the evening of the 4th.
But we do not think these cases are in point. The foreign statutes involved did not require a statement of the hour, but only generally of the time. Our statute, wisely or unwisely, expressly requires both the “date” and the approximate “hour.” In the case at bar nothing was said about the hour. One of the required elements in the notice was thus entirely omitted. Had an hour been stated, but not with precision, the question of “substantial compliance” would have been involved. As the matter stands, we do not think it is so involved.
But the plaintiff invokes the “rule of reason.” It asks us so to construe the statute as to prevent its working great hardship and leading to absurd results. Without entering into the question whether the literal enforcement of the statute in question produces any such injustice as it is implied by plaintiff’s argument that it does, or, on the other hand, is salutary legislation aimed at an existing evil of increasing importance, we will say that with the wisdom and indeed with the justice of the legislation in question we have nothing to do. Those questions are by the fundamental law of the State relegated to the Legislature for decision. It is undoubtedly true that the state of the law before a statute was passed, the evil to be remedied and the results of interpretation one way or the other, may be considered in construing ambiguous language, language of doubtful meaning, or language so involving a patent absurdity as to show clerical mistake; but we know of no case which would form a precedent for a court reading a statute which requires a statement of “the date' and about the hour of the accident” as though the words which we have italicized were lacking.
Finally the plaintiff argues that the statute is unconstitutional. Apart from any question of the general right of the Appellate Court to pass on the constitutionality of a statute, inasmuch as appeals involving such constitutionality must he taken to the Supreme Court, this statute has been expressly adjudged constitutional by the Supreme Court (Erford vs. City of Peoria, 229 Ill. 546), and since then, in at least two cases, strictly enforced (Walters vs. Ottawa, 240 Ill. 259, and Ouimette vs. Chicago, 242 Ill. 501); and we can hardly be expected to hold it invalid.
The Supreme Court has also by the same decisions negatived the necessity of specially pleading the lack of notice. The statute is mandatory in compelling the trial court to dismiss a suit when a sufficient notice has not been given. The quotation made by counsel from the opinion in Concordia Fire Insurance Co. vs. Bowen, 121 Ill. App. 35, has no applicability to a case like this. The proposition quoted is expressly based on our holding that under the policy involved the company waived the appraisal said to be required, if it did not demand it. The failure to secure it was therefore in any event a matter of defense.
The judgment of the Superior Court is affirmed.
Affirmed.
