Galbreath v. City of Indianapolis

• Decision Date: 18 February 1970
• Docket Number: No. 270S31,270S31
• Citation: 253 Ind. 472,255 N.E.2d 225
• Parties: Katherine J. GALBREATH, Appellant, v. CITY OF INDIANAPOLIS, Appellee. (169A8).
• Court: Indiana Supreme Court

Page 225

255 N.E.2d 225

253 Ind. 472

Katherine J. GALBREATH, Appellant, v. CITY OF INDIANAPOLIS, Appellee.

No. 270S31 (169A8).

Supreme Court of Indiana.

Feb. 18, 1970.

Waldo C. Ging, Greenfield, Bernard Stroyman, Charles W. Ardery, Jr., Indianapolis, for appellant, Ging, Free & Brand, Greenfield, of counsel

Gary Landau, City Atty., Indianapolis, for appellee.

ON PETITION TO TRANSFER

HUNTER, Chief Justice.

This case involves an action for personal injuries allegedly sustained by appellant when she stepped into a hole located at the southeast corner of Twenty-fifth (25th) Street and Keystone Avenue in Indianapolis, Indiana. The appellee-city filed a demurrer to the action on the basis that proper statutory notice of the occurrence complained of was not alleged. Upon a sustaining of the demurrer by the trial court, appeal was taken to the Appellate Court, Division No. Two, which affirmed. See Galbreath v. City of Indianapolis (1969), Ind.App., 248 N.E.2d 553.

Appellant, in her petition to transfer, alleges various grounds for transfer of the cause, all such grounds relating directly to the construction given the notice statute by the Appellate Court and the legal consequences flowing therefrom. The applicable statute requiring notice to be served on certain city officials appears at Ind.Ann.Stat. § 48--8001 (1963) and reads as follows:

'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 preperty, 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 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 associaed 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, except that where snow or ice is associated with such occurrence as the cause thereof, in whole or in part such notice shall be so served within thirty (30) days after such occurrence.'

The notice given in the instant case consisted of communications between appellant's husband and the city legal department as follows. On the day following the accident, appellant's husband called the switchboard operator at the City-County Building in Indianapolis and explained the accident. He was then referred by the operator to one Lt. Gohman in the Legal Department. Apparently the investigating officer at the scene of the accident had also told him that he would be submitting a copy of the investigation report to the legal department. Consequently, within two weeks of the accident, a letter was mailed to Lt. Gohman explaining briefly the details of the accident. Subsequently Lt. Gohman contacted appellant's husband by telephone to discuss the liability and damages aspect of the case. City Attorney John F. McCann also called appellant's husband to inquire into the physical condition of appellant. A second letter was sent by appellant's husband by registered mail to Lt. Gohman which letter was followed by conferences between the parties. All letters and negotiations preceded the expiration of the sixty day period stipulated in the statute as the time given for notice.

As pointed out in the majority opinion of the Appellate Court, there has been some confusion relative to the notice statute and a cause of action arising from the failure of a city to maintain its streets and sidewalks. The issue essentially is whether the right to sue a municipality for the negligent maintenance of its property, including streets and sidewalks, had its origin under the common law or was created by statute. A determination on this question, it is contended, will govern the construction given the notice statute, insofar as permissible deviations from the specific requirements of notice contained therein are concerned. Appellant argues that the right to a cause of action existed at common law and the requirements of the notice statute are procedural only. Appellee, on the other hand, contends that strict compliance with the statute is a condition precedent to the maintenance of the suit, the satisfaction of the notice requirements being mandatory.

As pointed out by appellant, this court originally took the position that the liability of a city for negligence in the maintenance and repair of various municipally owned structures was of common law origin. In the case of Ross v. City of Madison (1848), 1 Ind. 281 plaintiff's property was damaged as a result of the failure of the city to properly construct a culvert. In passing on the city's liability the court said:

'It may also be considered as settled that municipal corporations are responsible to the same extent and in the same manner as natural persons, for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for the benefit of the cities or towns under their government.' 1 Ind. at 284.

The common law duty was said to exist despite the absence of a positive statute where the municipal authorities were given the responsibility of keeping property, including streets and sidewalks, in repair and the means were provided for performing the task.

'Where the duty to keep streets in repair is, in terms enjoined upon the corporate authorities, and they are supplied with the means to perform it, there is little difficulty, we think, in holding the corporaion liable, on the general principles of the law, without an express statute declaring the liability to a civil action by any one specially injured by its neglect to discharge this specific duty. But where the duty to repair is not specifically enjoined, and an action for damages, caused by defective strees, is not expressly given, still, both the duty and the liability, if there be nothing in the charter or legislation of the state to negative the inference, has often, and, in our judgment, properly, been deduced from special powers conferred upon the corporation to open, grade, improve, and exclusively control public streets within their limits, and from the means which, by taxation and local assessments, or both, the law places at its disposal to enable it to perform his duty.' Higert v. City of Greencastle (1873), 43 Ind. 574, 586 quoting with approval from Dillon, Municipal Corporations § 789.

This position was reaffirmed as recently as 1941 in the case of Aaron v. City of Tipton (1941), 218 Ind. 227, 32 N.E.2d 88.

Opposed to this line of authority are those cases which hold that the giving of notice as required by the statute is a condition precedent to a right of action against a city.

'The liability of cities and towns for injuries resulting from defects in the streets, alleys, highways, and bridges is implied from the provisions of the statutes which impose the duty upon such municipalities to keep the streets, alleys, highways, and bridges in repair, and give them ample power to provide the means necessary to make such repairs. As said liability rests exclusively upon said statutes * * *.

The provisions of said section (notice statute) are mandatory, and the giving of said notice is a condition precedent to a right of action.' Touhey v. City of Decatur (1911), 175 Ind. 98, 100--101, 93 N.E. 540, 541, 32 L.R.A.,N.S. 350.

See also City of Indianapolis v. Uland (1937), 212 Ind. 616, 10 N.E.2d 907 and cases there cited. The Federal Court of Appeals for this circuit has likewise determined this rule to be the law in Indiana. Bituminous Casualty Corp. v. City of Evansville (7th Cir. 1...