APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM
W. BRUSSELL, Judge, presiding.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
On November 19, 1966, Vanda Kolar and Peter Kolar, plaintiffs-appellants, filed suit against the defendant-appellee, City of Chicago, to recover damages resulting from injuries sustained by Vanda Kolar on January 9, 1962, when she slipped and fell on a public cross-walk owned by the city.
In Count I, plaintiff Vanda Kolar sued to recover damages for personal injuries sustained by her. In Count II, plaintiff, Peter Kolar, her husband, sought to recover damages for loss of consortium and medical expenses as a result of the injuries sustained by his wife.
The City filed a motion for summary judgment on April 22, 1971, on the grounds that the plaintiffs failed to give notice of the injury to the City as required by statute and also failed to meet certain statute of limitations requirements. On May 20, 1971, after a hearing, the trial court entered an order dismissing both counts of the complaint, and the plaintiffs appeal.
We first consider the appeal of plaintiff, Vanda Kolar. Section 14 of the Limitations Act (Ill. Rev. Stat. 1961, ch. 83, par. 15) provides:
"Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversion, shall be commenced within two years next after the cause of action accrued."
To avoid the effect of this statute, plaintiff contends that at the time of her injury, there existed a statutory prohibition contained in sections 1-4-2 and 1-4-3 of chapter 24 of the Illinois Revised Statutes (Ill. Rev. Stat. 1961, ch. 24, pars. 1-4-2 and 1-4-3), which prevented her from filing her lawsuit until shortly before the date on which she filed, and that therefore the statute of limitations should not have been applied.
Sections 1-4-2 and 1-4-3 of chapter 24 of the Illinois Revised Statutes of 1961 provide that upon failure to serve notice of an injury to the City within six months after the occurrence, the suit shall be dismissed and the action barred. This statute was held constitutional in 1907 in the case of Erford v. City of Peoria, 229 Ill. 546, 82 N.E. 374. Under this case, the six months' notice requirement was a condition precedent to the cause of action.
On September 23, 1966, our Supreme Court in Lorton v. Brown County School District, 35 Ill.2d 362, 220 N.E.2d 161, reversed Erford and held the six months' notice requirement invalid. *fn1
Plaintiff argues that she could not commence her action within the the two-year limitation period because she had failed to serve the City with notice of her injury within six months. She maintains that the notice requirement, which was subsequently invalidated in Lorton, in effect tolled the statute of limitations until September 23, 1966, the date of the Lorton decision. Plaintiff further contends that she was therefore within the statutory period when she filed her complaint on November 19, 1966, within two months after Lorton. Plaintiff relies on section 23 of chapter 83 of the Illinois Revised Statutes (Ill. Rev. Stat. 1961, ch. 83, par. 24) which provides:
"When the commencement of an action is stayed by injunction, order of a judge or court, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." (Emphasis added.)
• 1 The record shows that no notice of the injury was ever served upon the City and the suit was actually filed more than four years and ten months after the occurrence. Plaintiff makes no claim that infancy, insanity or any other cause prevented her from filing the notice. We are not persuaded that plaintiff can rely on her own lack of diligence to toll the two-year statute of limitations.
A theory similar to plaintiffs' was rejected in Peterson v. Montegna & Co., 11 Ill. App.2d 109, 136 N.E.2d 586. There, a complaint was filed in March, 1954, for injuries suffered in April, 1947, as a result of a collision of two automobiles. Defendant's motion to dismiss on the ground that the statute of limitations barred the action for not being brought within two years was sustained and plaintiff appealed. Plaintiff maintained on appeal that he had no right to commence suit until 1952 when in Grasse v. Dealers Transport Co., 412 Ill. 179, 106 N.E.2d 124, the supreme court held the first paragraph of section 29 of the Workmen's Compensation Act (Ill. Rev. Stat. 1947, ch. 48, par. 166) unconstitutional. At the time of the occurrence both parties were under the Workmen's Compensation Act. The Appellate Court in Peterson held, as we do here, that the statutory prohibition did not toll the two-year statute of limitations.
In Peterson, the Court stated that "[a]n unconstitutional statute is null and void as of the date of its enactment. It is not a law. It confers no rights, imposes no duties and affords no protection. It is, in legal contemplation, as inoperative as though it had never been passed." (11 Ill. App.2d at 110-111, 136 N.E.2d at 587.) In the instant case, plaintiff could have sued within two years as did the plaintiff in Lorton and asserted that sections 1-4-2 and 1-4-3 of the Municipal Code were unconstitutional. Because she did not, she cannot now contend that the statute was tolled. We think ...