APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
K. BERG, Judge, presiding.
Rehearing denied April 30, 1974.
On September 21, 1970, plaintiff, Margaret Saragusa, filed this action against the defendant, City of Chicago, for injury resulting from her fall on April 20, 1970, due to an allegedly defective City sidewalk. The court, sitting without a jury, found for the plaintiff and assessed damages in the amount of $14,000, and the City appeals, contending that the court should have dismissed the action because the plaintiff's written statement, filed with the city clerk on June 23, 1970, (1) was not signed and (2) did not give "the name and address of the treating hospital or hospitals, if any," as required by section 8-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, as amended. (Ill. Rev. Stat. 1969, ch. 85, par. 8-102.) No question is raised as to the correctness or the amount of the verdict.
The City's answer to plaintiff's complaint admitted receipt of "purported notice." At trial, the assistant corporation counsel stated that he wanted the record to show that he had filed a motion to dismiss on the ground that the notice was defective in the two respects mentioned. Otherwise, the facts are not in dispute. The evidence showed that although the copy of the notice left with the assistant city clerk was not signed, the original which the assistant clerk signed for and which he stamped "Received" did contain the plaintiff's signature. Plaintiff was hospitalized from April 20, 1970, the date of the accident, until June 6, 1970, as a patient at St. Mary of Nazareth Hospital. This information was omitted from the notice, which gave Dr. A.B. Vacante's name as the "attending physician."
In ruling against the City on its motion to dismiss the case because the notice was insufficient, the trial judge said he based his decision on several factors, that the notice did contain the name of one Dr. Vacante and his address, that the information concerning the hospital was contained in the plaintiff's answers to the City's interrogatories, that the City did not raise the issue in its answer and did not file a motion to dismiss on the basis of improper notice until the date of trial. Under these circumstances, the court felt there was "substantial compliance" with the statute and that the City should be estopped from moving to dismiss at so late a date.
The City's fifth interrogatory had asked for information concerning any attending or consulting physicians and the plaintiff's answer, filed December 22, 1970, stated:
"5. (1) Dr. A.B. Vacante 6043 West Belmont Avenue Chicago, Illinois Tu 9-1777
(2) Dr. Dereng St. Mary of Nazareth Hospital 1120 North Leavitt Street Chicago, Illinois 60622
(3) Dr. Mahin Hamidi Dr. Flitis St. Mary of Nazareth Hospital 1120 North Leavitt Street Chicago, Illinois 60622
(4) Dr. Vacante periodic visits in hospital. Dr. Dereng 4-22-70. Dr. Mahin Hamidi 4-22-70. Dr. Flitis 4-22-70."
And in response to the City's sixth interrogatory, which requested certain information about whether the plaintiff had been "a patient or outpatient at any hospital or clinic," the plaintiff answered:
"6. Still under Doctor's care. Visits are made to patient's home.
Dr. A.B. Vacante on following dates:
6-25-70 $15.00 9- 9-70 15.00 10-31-70 ...