Aaron v. City of Tipton

• Decision Date: 04 March 1941
• Docket Number: 27480.
• Citation: 32 N.E.2d 88,218 Ind. 227
• Parties: AARON v. CITY OF TIPTON.
• Court: Indiana Supreme Court

32 N.E.2d 88

218 Ind. 227

AARON v. CITY OF TIPTON.

No. 27480.

Supreme Court of Indiana

March 4, 1941

Christian & Waltz, of Noblesville, and Charles Salyer, of Anderson for appellant.

Cleon Wade Mount, of Tipton, and Pence, O'Neill & Diven, of Anderson, for appellee.

SWAIM Chief Justice.

The sufficiency of a notice served by the appellant on the city of Tipton prior to bringing an action against said city for damages for personal injuries, alleged to have been caused by a defective sidewalk, is the sole question presented by this appeal. The only objection to the notice was that it was not verified.

Section 2 of Ch. 111, Acts of 1933, p. 705 (§ 48-8002, Burns' 1933, § 12512, Baldwin's, 1934), provided that, 'No action shall be brought or maintained by any person against any city * * * for damages suffered or claimed to have resulted from injuries to such person * * * unless written notice containing a brief general description of the date and approximate hour, place, defect or other condition, and cause of the accident or occurrence producing any such injury, * * * together with the nature and extent of such injuries, * * * shall, within sixty (60) days thereafter * * * be served * * * upon the mayor or the clerk of any city * * *.' Section 3 of the act provided that, 'Such notice shall be signed and duly verified before any officer authorized to administer oaths by the person so affected, or by the agent or attorney serving the same.' § 48-8003, Burns' 1933, § 12513 Baldwin's 1934.

The 1935 session of the General Assembly enacted another statute on this subject, Ch. 80, Acts of 1935, p. 235 (§ 48-8001 Burns' 1933 (Pocket Part), § 12515-1, Baldwin's Supplement May, 1935), which was approved February 23, 1935, and became effective June 10, 1935. This act provided for notice in all actions for damages arising from any negligence, wilfullness, nuisance or other tort of any municipal corporation, thus increasing the number of actions against a city in which notice was necessary. Under this statute verification of the notice was not required and all laws or parts of laws in conflict with said statute were repealed.

The accident out of which this action arose occurred on March 28, 1935, and within sixty days thereafter, towit, on May 17, 1935, a written notice, signed by the appellant and fully describing the time, place and cause of the accident and the resulting injuries to the appellant, was served on the mayor and clerk of the appellee city. Thereafter, on June 25, 1935, after the 1935 Act became effective, the appellant filed her original complaint.

On January 22, 1938, the appellant filed a third amended complaint, a demurrer to which was sustained on the ground that the notice to the city was not verified. The action of the court in sustaining the demurrer is the only alleged error assigned by the appellant.

The appellee contends that the statute, which was in effect at the time of the accident and at the time the notice was served, required that such notice be verified and that inasmuch as the complaint failed to allege that the notice was verified the complaint was demurrable for failure to state facts sufficient to constitute a cause of action.

In 1907 the first statute was passed which required notice to the city of an injury before maintaining an action for damages therefor. Ch. 153, Acts of 1907, p. 249. Our courts have held that the purpose of such notice as required by this and the later notice statutes was to inform the city officials with reasonable certainty of the time, place, cause and nature of the accident and the general nature and extent of the injuries so that the city might investigate all the facts pertaining to its liability and prepare its defense, or adjust the claim. Gary v. McNulty, 1935, 99 Ind.App. 641, 194 N.E. 193; Gary v. Wilson, 1937, 103 Ind.App. 376, 8 N.E.2d 109; Indianapolis v. Willis, 1935, 208 Ind. 607, 194 N.E. 343. Since this statute, instead of giving a statutory right, is a statutory limitation on the remedy, it is in derogation of the common law and should be strictly construed.

While we do not decide the question, it might be argued that the requirement of verification in the 1933 Act, supra, served no purpose and was, therefore, merely a directory provision rather than a mandatory provision. Most cases holding that the verification of the notice of a claim against a municipal corporation, where required by statute, is mandatory, are cases where the verification serves some useful purpose, as in claims on account or for services, and where the verification is made a condition precedent to the liability of the municipal corporation rather than a condition precedent to the filing of an action on liability which had accrued prior to the notice. Commonwealth Water Co. v. Castleton, 1920, 192 A.D. 697, 183 N.Y.S. 753; McEwen Mfg. Co. v. Covington, 1925, 112 Okl. 40, 239 P. 219; Richardson v. City of Salem, 1908, 51 Or. 125, 94 P. 34.

The appellant contends that the notice given in this case fully served the purpose of the notice statutes and complied with all of the requirements of the 1935 Act, supra, which was in force at the time of the filing of the original complaint herein.

The appellee insists that the statute in force when the accident occurred and when the notice was given governs the sufficiency of the notice. The said 1935 Act, however, says: 'That hereafter no action * * * shall be brought or maintained * * * unless there is first served * * * a written notice * * *.' The act does not say in the case of all accidents occurring 'hereafter' or as to all notices served 'hereafter', but only that no action shall be brought 'hereafter' unless notice, pursuant to the statute, shall have been given.

The limitation provided by this statute and by the 1933 Act, supra, which this statute superceded, were both on the bringing or the maintenance of an action on the claim, and did not constitute a condition precedent to the liability of the city or to the accrual of the claimant's right against the city.

Section 2 of said 1935 Act, supra, provides as follows: 'All laws or parts of laws in conflict herewith are hereby repealed: Provided, however, That any litigation now pending shall not be affected by this act, and that notices heretofore given and if sufficient under any act hereby repealed shall remain effective in such instances the same as if this act had not been passed.'

This section seems to clearly indicate that the legislators thought that the act would apply to injuries sustained and to notices served prior to the effective date of the act, otherwise it would have been unnecessary to have the language of this section saving the validity of notices theretofore given. It is to be noted, however, that the language did not purport to keep invalid a notice theretofore served and which would have been invalid in an action brought while the 1933 act was in force.

It seems clear that the intention of the legislature was that the terms of the 1935 Act should apply to all actions instituted thereafter even though the act might be retrospective in so far as it dispensed with the verification of notices theretofore given.

On the question of the proper construction of the statute and on the question of the constitutionality of the statute if it be construed to apply to an action which was barred prior to the effective date of this act by failure to have verified the notice as required by the former statute, it becomes necessary to consider the type of the liability here involved and the relation of the notice thereto.

Long before the passage of the first notice statute in 1907 this court had recognized the liability of a city for negligence in the construction and maintenance of streets and sidewalks. In Ross v. City of Madison, 1848, 1 Ind. 281, 284, 48 Am.Rep. 361, the City of Madison was held liable for 'unskilfully [and] carelessly' erecting a culvert and embankment across a brook in a street in that city, the court there saying, 'it may also be considered as settled that municipal corporations are responsible to the same extent and in the same manner as natural persons, for injuries occasioned by the negligence or unskilfulness of their agents in the construction of works for the benefit of the cities or towns under their government.'

On the question of the liability of the city for the negligent construction or maintenance of its streets and sidewalks there was an early division of authority. 43 C.J. 974, 977, and cases there cited. In New York it was recognized and held that a municipal corporation being given, by statute, the exclusive control and supervision of its streets was liable for failure to properly maintain them, such liability arising from the common law principle that where a power is given and a duty is imposed liability arises for the failure to properly exercise that power and discharge that duty. Ehrgott v. Mayor, etc., 1884, 96 N.Y. 264, 48 Am.Rep.

622. In Massachusetts, on the other hand, it was early held that a city in maintaining streets and sidewalks is exercising its governmental powers and is, therefore, not liable for torts committed in the discharge of the duties connected therewith. Hill v. City of Boston, 1877, 122 Mass. 344, 23 Am.Rep. 332. Each of these conflicting rules has many adherents. This state has consistently followed the New York rule. Higert v. City of Greencastle, 1873, 43 Ind 574, 590; Grove v. City of Fort Wayne, 1874, 45 Ind. 429, 15 Am.Rep. 262; Glantz v. City of South Bend, 1886, 106 Ind. 305, 309, 6 N.E. 632; City of Kokomo v. Loy, 1916, 185 Ind. 18, 112 N.E. 994. All of these decisions recognize the liability of the city in such a case as being a common law liability for negligence arising...