Galbreath v. City of Indianapolis, No. 270S31

Docket NºNo. 270S31
Citation253 Ind. 472, 255 N.E.2d 225
Case DateFebruary 18, 1970
CourtSupreme Court of Indiana

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.

[253 Ind. 473]

Page 226

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.

[253 Ind. 474] 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

Page 227

accident. He was then referred by the operator to one Lt. Gohman in the Legal Department. Apparently the investigating officer [253 Ind. 475] 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...

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72 practice notes
  • Dicampli–Mintz v. Cnty. of Santa Clara, No. H034160.
    • United States
    • California Court of Appeals
    • August 10, 2011
    ...of these decisions were cited in Jamison, supra, 31 Cal.App.3d at p. 517, 107 Cal.Rptr. 496. In Galbreath v. City of Indianapolis (1970) 255 N.E.2d 225, 253 Ind. 472, the plaintiff had failed to serve a notice on the city mayor or clerk, as the statute required, but instead gave it to the c......
  • City of Fort Wayne v. Cameron, No. 3--275A23
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1976
    ...the statute as establishing a procedural precedent. This view has been since adhered to in Galbreach v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E.2d 225, and most recently in Thompson v. City of Aurora (1975), Ind., 325 N.E.2d 839. In so ruling, the court in Aaron characterized the......
  • Dicampli–Mintz v. Cnty. of Santa Clara, No. S194501.
    • United States
    • United States State Supreme Court (California)
    • December 6, 2012
    ...cited no California authority for this proposition, referring instead to cases from Indiana ( Galbreath v. City of Indianapolis (1970) 253 Ind. 472, 255 N.E.2d 225) and the District of Columbia ( Stone v. District of Columbia (D.C.Cir.1956) 237 F.2d 28 [applying D.C. law] ). ( Jamison, supr......
  • Dicampli-Mintz v. Cnty. of Santa Clara, No. S194501.
    • United States
    • United States State Supreme Court (California)
    • December 6, 2012
    ...cited no California authority for this proposition, referring instead to cases from Indiana ( Galbreath v. City of Indianapolis (1970) 253 Ind. 472, 255 N.E.2d 225) and the District of Columbia ( Stone v. District of Columbia (D.C.Cir.1956) 237 F.2d 28 [applying D.C. law] ). ( Jamison, supr......
  • Request a trial to view additional results
72 cases
  • Dicampli–Mintz v. Cnty. of Santa Clara, No. H034160.
    • United States
    • California Court of Appeals
    • August 10, 2011
    ...of these decisions were cited in Jamison, supra, 31 Cal.App.3d at p. 517, 107 Cal.Rptr. 496. In Galbreath v. City of Indianapolis (1970) 255 N.E.2d 225, 253 Ind. 472, the plaintiff had failed to serve a notice on the city mayor or clerk, as the statute required, but instead gave it to the c......
  • City of Fort Wayne v. Cameron, No. 3--275A23
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1976
    ...the statute as establishing a procedural precedent. This view has been since adhered to in Galbreach v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E.2d 225, and most recently in Thompson v. City of Aurora (1975), Ind., 325 N.E.2d 839. In so ruling, the court in Aaron characterized the......
  • Dicampli–Mintz v. Cnty. of Santa Clara, No. S194501.
    • United States
    • United States State Supreme Court (California)
    • December 6, 2012
    ...cited no California authority for this proposition, referring instead to cases from Indiana ( Galbreath v. City of Indianapolis (1970) 253 Ind. 472, 255 N.E.2d 225) and the District of Columbia ( Stone v. District of Columbia (D.C.Cir.1956) 237 F.2d 28 [applying D.C. law] ). ( Jamison, supr......
  • Dicampli-Mintz v. Cnty. of Santa Clara, No. S194501.
    • United States
    • United States State Supreme Court (California)
    • December 6, 2012
    ...cited no California authority for this proposition, referring instead to cases from Indiana ( Galbreath v. City of Indianapolis (1970) 253 Ind. 472, 255 N.E.2d 225) and the District of Columbia ( Stone v. District of Columbia (D.C.Cir.1956) 237 F.2d 28 [applying D.C. law] ). ( Jamison, supr......
  • Request a trial to view additional results

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