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Fannon v. City of Aurora

ILLINOIS APPELLATE COURT — SECOND DISTRICT.


FEBRUARY 28, 1969.

PATRICIA Y. FANNON, PLAINTIFF-APPELLANT,

v.

CITY OF AURORA, A MUNICIPAL CORPORATION, AND OFFICERS SMITHBURG AND LAWRENCE, POLICE OFFICERS OF THE CITY OF AURORA, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN S. PETERSEN, Judge, presiding. Affirmed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 27, 1969.

Plaintiff appeals from a summary judgment dismissing her suit against the City and two police officers based on alleged negligence and false imprisonment.

In the case against the City the sole issue is whether or not plaintiff's service of notice by certified mail complied with the provisions of Ill Rev Stats 1965, c 85, § 8-102, *fn1 concerning notice of injury to a local public entity or any of its employees.

The additional argument is made in the case against the officers that, by failing to deny the allegation in plaintiff's complaint that she had "duly filed" the notice, they had thereby waived the requirement of personal service.

Plaintiff's position is that since the defendants did have actual notice of the claim within the time provided, that the purpose of the statute was fulfilled, and under the doctrine of "substantial compliance," the statute was satisfied. It is also urged that a literal reading of the statute would require that the plaintiff, herself, serve the notice and that to avoid absurd consequences we should interpret the statute to permit service by an agent, including the post office.

These arguments might have some weight if the statute did not clearly provide the form of service of notice, and make the notice a condition precedent to suit. See Ill Rev Stats 1965, c 85, §§ 8-102 (supra) and 8-103; City of Chicago v. James E. Mulligan Enterprises, 27 Ill. App.2d 481, 488, 170 N.E.2d 13 (1960). Service of notice by certified mail does not constitute personal service, nor does it comply with the personal service requirement. Haj v. American Bottle Co., 261 Ill. 362, 364-366, 103 N.E. 1000 (1914); Throgmorton v. Mosak, 245 Ill. App. 330, 331 (1925); Eastwood v. Road Dist. No. 5, 230 Ill. App. 281, 283 (1923).

Prior to 1965 the statute provided that the injured party "shall file" the notice. In 1965 the language was changed to provide that the plaintiff "must personally serve" the notice. In either event, the sensible reference is to method or character of service of the notice; and the statute does not require that the party personally go to the office to either file the notice under the previous provision or to serve the notice under the present one. Service may be made by an agent, but in view of the interpretation which the cases have placed on "personal service," we cannot conclude that the post office is the agent to make the service.

Under the prior statute it was held that the filing of the notice was mandatory and that "substantial compliance" (actual knowledge by the City) was not sufficient. See McCarthy v. City of Chicago, 312 Ill. App. 268, 277, 38 N.E.2d 519 (1941); Ouimette v. City of Chicago, 242 Ill. 501, 507, 90 N.E. 300 (1909); Minnis v. Friend, 360 Ill. 328, 332, 196 N.E. 191 (1935). Under the present statute, the requirement of "personal service" can, similarly, not be satisfied by service by mail, despite proof of actual knowledge.

Nor are we persuaded that the defendant Officers waived the requirement of personal service. The admissions made by the denial of the complaint merely were that the plaintiff did not "file" the notice. The complaint did not allege personal service as required by the statute, and the failure to deny the "filing" was in no way an admission that service had properly been made.

We, therefore, affirm.

Affirmed.

MORAN, P.J. and DAVIS, J., concur.


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