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Schear v. City of Highland Park

DECEMBER 31, 1968.

EDWARD R. SCHEAR, PLAINTIFF-APPELLANT,

v.

CITY OF HIGHLAND PARK, A MUNICIPAL CORPORATION, JAMES F. SHELTON, AND THE HARTFORD ACCIDENT & INDEMNITY COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. GLENN K. SEIDENFELD, and the Hon. PHILIP W. YAGER, Judges, presiding. Affirmed in part, reversed in part, and remanded.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

This is a personal injury action in which plaintiff appeals from the dismissal of his amended complaint and the amendment to his amended complaint. The issues presented are primarily concerned with the interpretation of certain provisions of the "Local Governmental and Governmental Employees Tort Immunity Act," Ill Rev Stats c 85, § 1-101, et seq. (1965), enacted on August 13, 1965.

The original complaint filed on May 5, 1967, by plaintiff, Edward Schear, charged that on July 1, 1965, defendant, James F. Shelton, negligently operated a motor vehicle, owned by the City of Highland Park, which vehicle collided with Shear's auto, causing plaintiff severe injury and damages.

Answer to the complaint was filed on June 2, 1967, wherein the individual defendant admitted operating the vehicle but denied the other material allegations of the complaint. On June 16, 1967, an amended complaint was filed making the City of Highland Park an additional defendant.

On August 23, 1967, on behalf of both defendants, a motion was filed to dismiss the amended complaint, setting forth the six-months' notice provision and the one-year limitation period as contained in the Tort Immunity Act (Ill Rev Stats 1965, c 85, §§ 8-101, 8-102 and 8-103) and citing sections of Ill Rev Stats 1963, c 24, §§ 1-4-1, 1-4-2 and 1-4-3.

The circuit court dismissed the complaint as to both defendants and by a separate order granted plaintiff leave to file an amendment to the amended complaint allowing joinder of the Hartford Accident and Indemnity Company as a party defendant. Such amendment was filed on December 20, 1967, charging Hartford, as liability carrier for the City of Highland Park, its agents and employees, with the financial responsibility for plaintiff's injuries and alleging that, by its insurance contract with the City, the company waived any defenses allowable under the special privileges and immunities granted in the Tort Immunity Act (supra).

Defendant filed a motion to strike and dismiss the amendment and on March 19, 1968, a final order was entered, striking the amendment to the amended complaint and denying plaintiff leave to file a second amended complaint. Judgment was entered for the defendant.

At the time of the accident, there was a one year statute of limitations on personal injury actions against municipalities. (Ill Rev Stats 1963, c 24, § 1-4-1.) When the Tort Immunity Act was adopted in 1965, this same limitation period of one year was retained. (Ill Rev Stats 1965, c 85, § 8-101.) As has been noted, plaintiff's amended complaint, wherein the city was for the first time made a defendant, was not filed until almost two years after the accident.

Although the Tort Immunity Act did not change the limitation period for personal injury actions against municipalities, it did somewhat change the notice requirement. The statute in effect on the date of the accident, (c 24, § 1-4-2) provided that, within six months after an injury was sustained, a person contemplating suit ". . . against any municipality for damages on account of any injury to his person," was required to file a written notice with the city, stating his name, address, the date and place of the accident, and the name of his attending physician. Section 1-4-3 of the statute provided that, if the required notice was not given, the suit should be dismissed with prejudice.

The Tort Immunity Act of 1965 contains a similar notice requirement, but with one important addition that is relevant here: It provides that the six months' notice must be given before suit is commenced against ". . . a local public entity" (which included a municipality) ". . . or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury. . . ." (Ill Rev Stats 1965, c 85, § 8-102.) Section 8-103 provides that if the required notice is not given, then ". . . any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury," shall be dismissed with prejudice.

After plaintiff filed his amended complaint, the defendants filed a motion to dismiss, supported by an affidavit of the City Clerk to the effect that no six months' notice had ever been served. The grounds of the motion were this failure to serve the notice and the failure to file suit against the city within one year. The lower court granted the motion as to the city on the basis that no notice had been given and suit had not been commenced within one year. The motion was also granted as to the employee, Shelton, on the theory that the notice requirement of the 1965 Tort Immunity Act was retroactive, inasmuch as it was procedural rather than substantive. (The one-year Statute of Limitations applies only to the action against the city, and does not apply to Shelton, as to whom the limitation period would be the general two-year statute on actions for personal injury.)

We believe that the lower court was correct in dismissing the amended complaint against the city, but that it erred in dismissing the complaint against Shelton. We think the dismissal of the city was proper because the city was not sued within one year and a one-year statute of limitations was in effect at all times. Plaintiff now seeks to argue that a one-year statute in favor of governmental bodies is unconstitutional in view of the fact that the general limitation period for personal injury actions is two years. However, this point was not raised in the lower court. Accordingly, it was waived and we do not consider it.

At the time of the accident, it was not a prerequisite to a suit against Shelton that any notice be filed. This requirement did not apply to suits against city employees until the new Act became effective on August 13, 1965. We disagree with the lower court that this requirement can be applied retroactively since it is merely "procedural." Failure to comply is a complete bar to the action and we, therefore, regard the requirement as a matter of substance rather than procedure. We think it clear that the retroactive application of the notice requirement would deprive the plaintiff of a cause of action which had accrued prior to the time the requirement first became law. We believe that cases involving statutes of limitation are closely analogous. In Tatge v. Hyde, 84 Ill. App.2d 310, 228 N.E.2d 179 (1967), a statute shortening the limitations period in regard to actions against personal representatives of deceased persons was held to be prospective only, so that it did not bar an action which accrued prior to its passage but which had not been filed until after its passage. The court reviewed the authorities and quoted from Carlin v. Peerless Gas Light Co., 283 Ill. 142, 144, 119 N.E. 66 (1918), where the Supreme Court had held that a statute shortening the time within which to bring a wrongful death action ". . . will be given a prospective effect unless there appears a clear intention to the contrary, and then only where reasonable time is allowed in which to enforce existing rights."

In the instant case, we find nothing in the 1965 statute to indicate a legislative intention that the notice requirement be made retroactive. Moreover, while a retroactive application of the requirement would have given this plaintiff a reasonable time within which to file the notice, this would not have been true of persons whose actions against municipal employees had accrued more than six months but less than two years prior to August 13, 1965. In ...


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