City of Ft. Wayne v. Bender

• Decision Date: 01 July 1914
• Docket Number: No. 8377.,8377.
• Parties: CITY OF FT. WAYNE v. BENDER.
• Court: Indiana Appellate Court

57 Ind.App. 689

105 N.E. 949

CITY OF FT. WAYNE

v.BENDER.

No. 8377.

Appellate Court of Indiana, Division No. 2.

July 1, 1914.

Appeal from Superior Court, Allen County; Carl Yaple, Judge.

Action by Milton H. Bender against the City of Ft. Wayne. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Guy Colerick and Henry G. Hogan, both of Ft. Wayne, for appellant. McAdams & Hartzell and William C. Ryan, all of Ft. Wayne, for appellee.

LAIRY, J.

Appellee recovered a judgment against the city of Ft. Wayne for personal injuries alleged to have been received by him on account of a defect in one of the streets of such city.

The only question presented by the assignments of error is based upon the failure to give to the city a sufficient written notice of the time, place, and cause of appellee's injury, as required by section 8962, Burns 1914. The complaint alleged, and the evidence without dispute shows, that the injury occurred on the 28th day of April, 1910, while the notice filed with the complaint and introduced in evidence states that such injury occurred on the 18th day of April, 1910.

[1] The courts of this state have uniformly held that the liability of a city for damages on account of personal injuries resulting from defects in streets arises by implication by force of the statutes of this state imposing the duty on cities of keeping their streets in repair and conferring upon such municipalities the power to raise funds for such purpose. Touhey v. City of Decatur, 175 Ind. 98, 93 N. E. 540, 32 L. R. A. (N. S.) 350;Gribben v. City of Franklin, 175 Ind. 500, 94 N. E. 757. It has also been held that, as the statute imposes the duty from which the liability arises, the Legislature has a right to impose such conditions and limitations on the right to recover as it may see fit, and that one who seeks the benefit of the statute must bring himself within its provisions and comply with all conditions imposed by the Legislature. It is accordingly held that the giving of the statutory notice is a condition precedent to a right to recover. Touhey v. City of Decatur, supra; Blair v. City of Ft. Wayne, 51 Ind. App. 652, 98 N. E. 736;City of Franklin v. Smith, 175 Ind. 236, 93 N. E. 993.

Our statute requires that the notice served shall contain a brief, general description of the time, place, cause, and nature of the injury. Appellee takes the position that this statute does not require a definite and specific statement of the time of the injury, and that for this reason a discrepancy of ten days between the date of the injury as stated in the notice, and the date of such injury as shown by the proof, is not fatal to a recovery. This section of our statute has never been construed, with respect to the question here presented, either by this court or by the Supreme Court, but the question has been decided by the higher courts of other states in construing statutes differing slightly from the statute under consideration. In jurisdictions where the question has been presented, the courts have held with practical uniformity that the date of injury, as stated in the notice, must conform to the date as shown by the evidence, and that a failure of proof in this respect is fatal to a recovery. Carter v. City of St. Joseph, 152 Mo. App. 503, 133 S. W. 851;Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42;Taylor v. Peck, 29 R. I. 481, 72 Atl. 645;Ouimette v. City of Chicago, 242 Ill. 501, 90 N. E. 300;Canter v. City of St. Joseph, 126 Mo. App. 629, 105 S. W. 1.

The attention of the court has been called to only two cases which, as claimed by appellee, announce the doctrine that the proof as to the time of the injury need not conform strictly to the date stated in the notice. Sullivan v. City of Syracuse, 77 Hun, 440, 29 N. Y. Supp. 105;Murphy v. Seneca Falls, 57 App. Div. 438, 67 N. Y. Supp. 1013.

In the case last cited it was held that a notice stating that the injury occurred “on or about the 10th day of April, 1897,” was a sufficient compliance with the statute, where the evidence showed that the injury occurred on the 10th day of April, 1897. This case does not hold that the notice was sufficient to warrant the introduction of evidence showing that the injury occurred on any day other than such 10th day of April, and it is not therefore in conflict with the cases which hold that evidence as to the time of the injury must conform strictly to the date stated in the notice. The case of Sullivan v. City of Syracuse, supra, sustains appellee's posttion. In that case the notice stated that the injury occurred on the 5th day of August, 1891, and the evidence showed that it happened on the evening of the 4th. Under this state of facts, the court submitted the question to the jury and permitted it to determine whether or not plaintiff was injured substantially at the time stated in the notice.

It cannot be supposed that the court asked the jury to decide whether or not the time of the injury, as shown by the evidence, conformed strictly to the time stated in the notice. It was assumed by the instruction given that there was a difference between the time shown by the evidence and the time stated in the notice, and the jury was asked to decide whether or not this difference was substantial. If this question is to be determined solely from a consideration of the difference of time between that shown by the evidence and that...