City of Terre Haute v. Pigg

• Citation: 27 N.E.2d 137,108 Ind.App. 68
• Decision Date: 10 May 1940
• Docket Number: 16340.
• Parties: CITY OF TERRE HAUTE v. PIGG.
• Court: Court of Appeals of Indiana

27 N.E.2d 137

108 Ind.App. 68

CITY OF TERRE HAUTE v. PIGG.

No. 16340.

Appellate Court of Indiana, in Banc.

May 10, 1940

William E. Littlefield and Winfield M. Fox, both of Terre Haute, for appellant.

James C. Stimson, of Terre Haute, for appellee.

CURTIS Judge.

This was an action brought by the appellee against the appellant to recover damages for injuries alleged to have been sustained by the appellee on February 2, 1936, by reason of the alleged negligence of the appellant city of Terre Haute in permitting a dangerous condition to exist in a sidewalk in the city and failing to repair said defective condition in the sidewalk.

The original complaint was filed in the Superior Court of Vigo County to which an answer of general denial was filed by the appellant. The venue was changed on application of the appellee to the Sullivan Circuit Court, where the cause was tried and a verdict returned for the plaintiff (appellee) in the sum of $1. Later a motion of the appellee for a new trial was filed and sustained and thereafter the venue was changed on application of the appellant to the Greene Circuit Court and there the answer of general denial was withdrawn and a demurrer to the appellee's complaint was filed and overruled. A plea in abatement was then filed and upon the appellee's motion was stricken out. An answer in three paragraphs was then filed by appellant and on motion of the appellee the second paragraph of same was stricken out. A reply of general denial was filed to the appellant's third paragraph of answer. The cause was then tried on the issues thus made and a verdict returned for the appellee in the sum of $5000. Judgment was duly rendered on the verdict. A motion for new trial was filed by the appellant and overruled. This appeal was then prayed and perfected.

The errors assigned and presented are as follows:

"(1) The trial court erred in overruling appellant's demurrer to appellee's complaint."

"(3) The trial court erred in sustaining appellee's motion to strike out appellant's second paragraph of answer."

"(5) The trial court erred in overruling appellant's motion for a new trial."

Under the motion for a new trial the causes or grounds that are presented by the appellant's brief are that the verdict of the jury is not sustained by sufficient evidence; is contrary to law; error in the refusal to give instruction No 5 tendered by the appellant and certain alleged errors in the rulings as to the evidence.

The major portion of the appellant's contentions center around its proposition that the notice given to the city (appellant) by the appellee of the accident which she suffered did not meet the requirements of the statute. The specific contention of the appellant in connection with the said notice is stated in the memorandum to the demurrer as follows: "The notice set out in plaintiff's complaint which was served on the city clerk is shown to have been signed by 'James C. Stimson, Attorney for Maxine Pigg and A. W. Pigg, husband of Maxine Pigg', and not by the party serving the same as provided by Chapter 80 of the Acts of the General Assembly of the State of Indiana for 1935, and said action cannot be maintained because of the inefficiency of said notice."

It is to be noted that no question is raised either as to the body of the notice or that it was not timely served. The only objection raised as to said notice is that it was not signed in person by the appellee and served by her.

There have been three statutes in this state relating to the giving of such notice. The first was the Acts of 1907, Chapter 153 page 249; the second the Acts of 1933, Chapter 111, section 2, page 705, and the third the Acts of 1935, Chapter 80 section 1, page 235, which latter act is the one controlling in the instant case. The said act of 1907 provided in effect that no action in damages should be maintained against any city unless written notice containing certain information as to the accident shall be given to the mayor or clerk, without specifying who shall give the notice. The said act of 1933 provided in effect that no action should be brought against any city unless a written notice shall "be served by any person possessing any such right of action * * * or in behalf thereof by any authorized agent or attorney. Such notice shall be signed and duly verified * * * by the person so affected, or by the agent or attorney serving the same". Section 3. The present act (1935 supra) is more in harmony with the act of 1907 and repeals the act of 1933 supra. It provides that "No action * * * 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 trus...