Bituminous Cas. Corp. v. City of Evansville, Indiana

• Decision Date: 02 October 1951
• Docket Number: No. 10399.,10399.
• Parties: BITUMINOUS CAS. CORP. v. CITY OF EVANSVILLE, INDIANA.
• Court: U.S. Court of Appeals — Seventh Circuit

191 F.2d 572 (1951)

BITUMINOUS CAS. CORP. v. CITY OF EVANSVILLE, INDIANA.

No. 10399.

United States Court of Appeals Seventh Circuit.

October 2, 1951.

Edmund F. Ortmeyer, Frederick P. Bamberger, William P. Foreman, all of Evansville, Ind., Frank J. Crawford, Frank P. Crawford, Terre Haute, Ind., for appellant.

William T. Fitzgerald, Herman L. McCray, Evansville, Ind., Ruth E. Maier, Nat H. Youngblood, Evansville, Ind., for defendant-appellee.

Before KERNER, DUFFY, and SWAIM, Circuit Judges.

KERNER, Circuit Judge.

Plaintiff, a Workmen's Compensation Insurance carrier, filed its complaint for statutory subrogation against defendant, the city of Evansville, Indiana, charging that as a result of the negligence of one of its employees, plaintiff became liable for injuries sustained by an employee of Bower Brothers, under a policy of workmen's compensation insurance issued to that employer. This liability was fixed at $6,741, including payments for medical and hospital care and for temporary total and permanent partial disability, which amount plaintiff was ordered by the Industrial Commission to pay and did pay in lump sum on behalf of the insured employer.

Defendant moved to dismiss the action on three grounds. 1. The complaint failed to state a claim on which relief could be granted. 2. It did not show compliance with the requirement of 60-day notice of the occurrence of the accident as provided by Indiana statute in the case of claims against a municipal corporation. 3. The action was not commenced within one year after the acceptance of the compensation awarded. The District Court sustained defendant's motion and dismissed the action, and from that judgment the appeal is prosecuted.

Section 48-8001, Burns' Indiana Statutes, in effect at the time the accident here involved occurred, provides as follows: "Notice of claim against cities and towns. — Hereafter no action or actions of any kind for damages arising from any negligence * * * of any municipal corporation that causes injury to any person, or loss, injury or damage to any property, or any wrongful death, and regardless of to whom any such action or actions may accrue, shall be brought or maintained against any municipal corporation of this state unless there is first served upon either the mayor or clerk of any such city * * * either by delivery thereto in person or by registered mail with return card, a written notice of the occurrence complained of, setting out therein a brief general description of the date and time, the place, the conditions and cause, the nature and extent of the injury to person and loss, injury or damage, if any, to property, the date and cause of any resulting death charged as wrongful and the nature of the damages arising to anyone therefrom, all as associated with and caused by such occurrence. Such notice shall be dated and signed by the person giving the same and must be served as aforesaid so as to be received by some such municipal official aforesaid within sixty (60) days after the occurrence complained of, regardless of what causes of action may arise or result therefrom * * *."

The complaint nowhere alleged compliance with this statutory requirement of notice. Appellant contends, however, that the...