City of Gary v. Russell
| Decision Date | 12 June 1953 |
| Docket Number | No. 18343,18343 |
| Parties | CITY OF GARY v. RUSSELL. |
| Court | Indiana Appellate Court |
Paul R. Piazza and Howard H. Hill, Gary, for appellant.
Call & Call, Edgar J. Call and Dean J. Call, Gary, Thomas Dumas, Rensselaer, for appellee.
This is an appeal from a judgment in an action for damages for personal injuries allegedly sustained by the appellee while driving his automobile on the public streets maintained by the appellant City of Gary. The complaint alleged that the injuries were due to a certain defect existing in the pavement of the street, which defect was allegedly caused by the negligence of the appellant in maintaining the street and failing to repair the same. Issues were joined on appellee's complaint and the appellant's answer thereto. The cause was tried to a jury, and the jury returned a verdict for appellee in the sum of $1,000 and judgment was rendered thereon.
Errors assigned for reversal question the sufficiency of the notice served upon the city by the appellee plaintiff prior to the bringing of such suit. The appellant claims that the court erred in overruling the appellant's objection to the introduction into evidence of an exhibit, which was the notice, and that the trial court erred in overruling appellant's motions for directed verdicts at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, that the trial court erred in overruling appellant's motion for a new trial, which motion, in addition to questioning the notice, alleged that the verdict of the jury was not sustained by sufficient evidence, and that the verdict of the jury was contrary to law.
The appellant contends that the notice which was served upon the city was not in compliance with the provisions of the statute, § 48-8001, Burns' 1950 Replacement, Acts 1935, ch. 80, § 1, p. 235. The appellant urges that the notice in question was not 'signed by the person giving the same' in accordance with the requirements of the statute. The notice in question was a typewritten paper and in substance was as follows:
'Notice
'The City of Gary, Lake County, Indiana, is hereby notified that on July 20, 1947, and for several weeks immediately prior thereto, the City of Gary, Lake County, Indiana, by and through its agents, servants, officers and employees, suffered and permitted the pavement on 25th Avenue in said city, at the intersection thereof with Taft Street in said city, to become damaged and worn whereby a deep, jagged hole was permitted to become worn in said pavement at said point, which hole in said pavement was approximately 14"' in diameter, and approximately 5"' in depth, and permitted thereafter the said hole in said pavement to continue in said condition unrepaired and unattended to for a period of several weeks without erecting any barrier, sign or warning whatsoever to motorists lawfully upon said public street in said city of the existence of said hole in said pavement; that said hole was not readily visible because of the type of pavement on said public street and constituted a dangerous and hazardous condition to motorists and other persons lawfully upon said public street. That on July 20, 1947, the undersigned Clement Russell was driving his automobile eastward upon said public street in a careful and prudent manner, and at said intersection at about 6:20 o'clock P. M., and without any previous knowledge or information of the existence of said hole in said pavement, that the left front wheel of his automobile struck said hole in said pavement whereby the steering wheel of his said automobile was jerked out of his hands and his automobile was abruptly thrown to the left side of said pavement and into, upon and against an embankment and ditch thereat, by reason of which the undersigned was temporarily knocked unconscious and suffered the following injuries, to-wit: * * * (appellee's injuries are particularly and specifically described in the notice); that all of his said injuries and damages were caused as a direct and proximate result of the carelessness and negligence of said City of Gary in failing to repair said hole in said public street and in failing to erect any barrier or warning signal or device whatsoever as to the existence of said hole in said pavement.
'That this notice is given pursuant to the provisions of the Statutes of the State of Indiana. 'Dated this 18th day of September, 1947.
Clement Russell by _____ his attorney and duly authorized agent'
Prior to 1935 and the passage of the present statute, $48-8001, supra, the statute not only required a written signature of the claimant but it required that the signature be verified. The appellant asserts that the signature to the notice in question was improper because the name of the appellee claimant was typewritten at the end of the notice and that by reason of § 1-201, Burns' 1946 Replacement, which states that 'in all cases where the written signature of any person is required, the proper handwriting of such person, the his mark, shall be intended'. The appellant insists that the notice is defective and that the giving of such defective notice is the same as giving no notice at all and that the appellee, therefore, did not have the right to maintain the action against the appellant, City of Gary.
The appellant does not question the body of the notice served, nor that the City of Gary did not have proper and adequate notice as to all of the necessary particulars required to be contained in a statutory notice, except that the name of the claimant was typewritten instead of subscribed or signed in claimant's handwriting at the end of the notice. The liability of the city in the instant case is statutory, and one asking the benefit of the statute must show he is within its provisions, including the one requiring notice. City of Indianapolis v. Uland, 1937, 212 Ind. 616, 10 N.E.2d 907.
The decisions of our courts interpreting our statute are in accord with the majority weight of authority in this country and require substantial compliance with the statute, which includes the necessity of giving to municipal authorities proper notice as to the date and time, the place, the conditions and cause, and the nature and extent of the injury and damage. The object of our statute is to afford municipal authorities an opportunity to investigate the facts concerning an accident allegedly caused by the negligence of such municipality and its officers while such evidence is available. McQuillin, Municipal Corporations, 2d Edition, Vol. 6, Ch. 53, § 2895, and cases therein cited.
This court stated in City of Gary v. McNulty, 1935, 99 Ind.App. 641, 194 N.E. 193-194:
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