City of Fort Wayne v. Cameron, No. 1277S811

• Docket Nº: No. 1277S811
• Citation: 267 Ind. 329, 370 N.E.2d 338
• Case Date: December 14, 1977
• Court: Supreme Court of Indiana

Page 338

370 N.E.2d 338 267 Ind. 329 CITY OF FORT WAYNE, Appellant,
v.
Charles CAMERON, Appellee. No. 1277S811. Supreme Court of Indiana. Dec. 14, 1977.

[267 Ind. 330]

Page 339

David B. Keller, David A. Travelstead, Warren B. Rosenblatt, Fort Wayne, for appellant.

Howard B. Sandler, Neil F. Sandler, Edward N. Smith, Fort Wayne, for appellee.

OPINION ON PETITION TO TRANSFER

GIVAN, Chief Justice.

Appellee Charles Cameron was shot by a Fort Wayne police officer on June 20, 1969. The bullet struck him in the neck and paralyzed all four limbs. As a result of the injury he was confined in a hospital for more than one year. On March 16, 1970, he attained his majority and on April 3, 1970, he gave a formal notice of claim to the city.

Action was filed in Allen Superior Court on June 21, 1971. The city subsequently filed a motion to dismiss on the ground that plaintiff had failed to comply with the provisions of the city notice statute, IC 1971, 18-2-2-1, which requires a notice of claim against a municipal corporation to be given within 60 days of the incident. The trial court denied the motion to dismiss.

A change of venue was taken to the Noble Circuit Court where the city moved for summary judgment on the same ground. The trial court denied the motion for summary [267 Ind. 331] judgment, ruling that on the basis of Chaffin v. Nicosia, (1974) 261 Ind. 698, 310 N.E.2d 867, the doctrine of in pari materia requires that the disability statute, IC 1971, 34-1-2-5, and the city notice statute, IC 1971, 18-2-2-1, be construed together with the result that Cameron would have 60 days after his incapacity was removed within which to file notice.

The Court of Appeals for the Third District reversed the trial court's determination. City of Fort Wayne v. Cameron, (1976) Ind.App., 349 N.E.2d 795. The Court of Appeals held that the statutes at issue are irreconcilably in conflict and therefore cannot be read together. The court also held that the statute was constitutional and there was no substantial compliance with the notice statute, notwithstanding the fact the police department had investigated the incident. In a dissenting opinion in the Court of Appeals, Judge Staton argued that to apply the notice statute strictly in this case would be to deprive Cameron's right of action unreasonably and arbitrarily and would, therefore, violate the constitutional guarantee of a remedy by due course of law. Judge Staton was of the opinion that the notice provision should be extended until a reasonable time after the incapacity was removed.

The statute in question, IC 1971, 18-2-2-1, reads as follows:

"Notice of claim against cities and towns. Hereafter no action or actions of any kind for damages arising from any negligence, wilfulness, nuisance, or other tort 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 or a member of the board of trustees of any such town, either by delivery thereto in person or by registered mail with return card, a written notice of the occurrence complained of, setting out...