Galbreath v. City of Indianapolis

• Decision Date: 26 June 1969
• Docket Number: No. 169,No. 2,169,2
• Parties: Katherine J. GALBREATH, Appellant, v. CITY OF INDIANAPOLIS, Appellee. A 8
• Court: Indiana Appellate Court

Page 553

248 N.E.2d 553

145 Ind.App. 80

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

No. 169 A 8.

Appellate Court of Indiana, Division No. 2.

June 26, 1969.

Rehearing Denied July 23, 1969.

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

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

SHARP, Judge.

The Appellant-Plaintiff, Katherine J. Galbreath, filed a Complaint for Damages against the City of Indianapolis, Indiana, alleging she was injured on December 22, 1964 because of the negligence of the City. The Complaint was filed January 13, 1966 and a Second Amended Complaint was filed August 23, 1967 after this case was venued to the Hancock Circuit Court. The Second Amended Complaint in substance alleged that Appellant was injured on December 22, 1964, which injury occurred in the City of Indianapolis, Indiana, and resulted from the City's negligence in maintaining its streets. The essential allegation as to notice is rhetorical paragraph 20 which states:

'(20) That subsequent to Plaintiff's injuries, to-wit: on or about December 23, 1964, Plaintiff, by and through her husband Ray L. Galbreath, telephoned the general switchboard at the City-County Building, Indianapolis, Indiana, and after explaining the accident to the operator was referred to the Office of Lt. Gohman of the Legal Department of the City of Indianapolis. That on or about January 2, 1965, said Ray L. Galbreath, for and on behalf of the Plaintiff addressed a letter to Lt. Gohman misnamed Gorman explaining the accident and the Plaintiff's injuries, a copy of which is attached hereto, incorporated herein and marked Exhibit 1. That subsequent to this time, Plaintiff's husband was contacted by telephone by Lt. Gohman who discussed the liability and damage aspects of this cause, and by Indianapolis City Attorney John F. McCann, Jr., who inquired into the physical condition of Plaintiff, and who subsequently represented the Defendant, City of Indianapolis in the preliminary negotiations in the instant case. That later on January 22, 1965 Plaintiff by and through her husband sent a registered letter to the Legal Department of the City of Indianapolis to the attention of Lt. Gohman, misnamed Gorman, explaining Plaintiff's injuries, a copy of which is attached hereto, incorporated herein and marked Exhibit 2. That subsequent to this period conferences were held between Plaintiff and her husband on one hand, and Lt. Gohman on the other hand, said conferences occurring prior to February 20, 1965, which date represents a date sixty (60) days subsequent to the occurrence of the injury.'

Attached to rhetorical paragraph 20 of the Amended Complaint as an Exhibit was a letter to Lt. Gohman, which stated:

'Lt. Gorman

Dear Sir:

Today we contacted the Legal Department in reference to an accident my wife experienced December 22, 1964, at 7:30 P. M. at the south east corner of East 25th Street and Keystone Avenue and was advised to communicate to your attention the facts of same.

In the process of mailing some letters in the post box at that location my wife, Katherine J. Galbreath was severely injured by stepping into a hole adjacent to the catch basin, which is in line from the curb to the post box. The sidewalk is of gravel and the location poorly lighted. I immediately called the police and in less than 5 minutes an officer responded to the call. He made note of the details examined the site stated a report would be made of same to the legal dept. and to date have not been contacted by same. My wife is under the care of Dr. James Young, 6302 Guilford Avenue.

Trusting you will give this matter your immediate attention, I am

Yours very truly,

/s/ Ray L. Galbreath

Ray L. Galbreath'

The second letter attached to rhetorical paragraph 20 stated:

'5740 Haverford Avenue

Indianapolis, Indiana--46220

January 22, 1965

Legal Department

City of Indianapolis

Indianapolis, Indiana

Attention: Lt. Gorman

Dear Mr. Gorman:

On December 22, 1964, approximately 7:30 P. M. in the process of mailing some mail at the post box located at the southeast corner of North Keyston Avenue & 15th Street my wife, Katherine J. Galbreath was seriously injured by steeping into a hole in the gravel sidewalk. At this location there is an catch basin at the curb and the post box is located 6 or 8 feet across the gravel walk. There was a deep hole 11 to 15 inches in diameter from grade to the interior of the basin. The site is very poorly lighted.

After picking my wife up and putting her into our car I called the police from the filling station across the street and an officer in a squad car responded in less than 5 minutes. A report was made to him and he and I inspected the site. He informed me that pictures would be taken of same and barricade erected until repairs could be made. I informed him I would proceed to our family physician, Dr. James W. Young, 6303 Guilford Avenue who examined her and she was under his care at home until January 8, 1965. On this date due to severe pain from the result of injury Dr. Young contacted Dr. Donald S. Blackwell, 1815 N. Capital Avenue who is an Ortho Surgeon and my wife was sent to hospital. Upon admittance to Methodist Hospital X-Rays were taken after examination and picture showed damaged disc in the spine. She was put in traction until January 17, then being fitted with an orthopedic corset was dismissed from hospital. Dr. Blackwell advised bedrest at home and both doctors are still in attendance. Due to shock her temperature is abnormal and is still in constant pain.

Aside from the police report which the officer said would be referred to your department I submitted a written report. Since I have talked with Lt. Gorman regarding same.

Trusting I will be favored with an early reply, I am

Yours very truly,

/s/ Ray L. Galbreath

RAY L. GALBREATH

Telephone--Clifford 5,78a7'

The Appellee-City filed a Demurrer to Appellant's Second Amended Complaint together with Memorandum, which stated:

'The Defendant, City of Indianapolis, demurs to the plaintiff's second amended complaint, on each of the following grounds:

1. That the plaintiff's complaint does not state facts sufficient to constitute a cause of action.

MEMORANDUM

The plaintiff's amended complaint herein fails to allege facts showing proper statutory notice of the occurrence complained of was given to the Municipal Corporation--defendant herein. The statute governing same, Burns Indiana Statutes Annotated, 1963 Replacement, Section 48-8001, prescribes such notice and the manner for giving same. The allegations contained in paragraph 20, of plaintiff's second amended complaint, purport to recite the giving of notice, but clearly fail to state that such notice was served upon '* * * either the Mayor or the Clerk of any such City * * * either by delivery thereto in person or by registered mail with return card * * *,' and instead indicate that letters were mailed to an investigator in the City Legal Department and that conversations were had with investigator and a City Attorney.

In interpreting this statute the Courts have held that it should be strictly construed with respect to the requirements that:

1. That notice be given

2. Within specified time

3. To the proper officials but that it should be liberally construed with respect to whether the notice itself, in its contents, is sufficiently definite as to the time, place and nature of injury. Volk v. Michigan City (1941) 109 Ind.App. 70, 32 N.E.2d 724; City of Logansport v. Gammill (1957), 128 Ind.App. 53, 145 N.E.2d 908.

The Appellate Court has recently held that facts showing the giving of notice required by this action must be alleged in the complaint or it will be insufficient on demurrer. Wellmeyer v. City of Huntingburg (1966), Ind.App., 7 Ind.Dec. 505, 213 N.E.2d 709.

Further, the law has developed that the notice required to be given a City constitutes a condition precedent to a right of action against the City, and that facts showing the giving of such required notice must be alleged in the complaint, or it will be demurrable. Indianapolis v. Evans (1940), 216 Ind. 555, 24 N.E.2d 776.

Further, plaintiff's right to maintain the action against the City must be determined by the sufficiency of his notice, and not by the circumstance that the City or an official or employee thereof obtained from other sources knowledge of the time, place, cause and nature of the injury. City of Indianapolis v. Uland (1937), 212 Ind. 616, 10 N.E.2d 907; Touhey v. City of Decatur (1911), 175 Ind. 98, 93 N.E. 540, 32 L.R.A.,N.S., 350.

It is the defendant's position, therefore, that said amended complaint does not state facts sufficient to state a cause of action, and its demurrer should be sustained.'

The trial court sustained this demurrer on September 9, 1968 and on October 21, 1968 the Appellant refused to plead over, after which the trial court entered the following judgment:

'Come now the parties in open court, by counsel, and defendant's demurrer to plaintiff's second amended complaint having been sustained, and plaintiff now refusing to plead over, the Court now enters judgment against the plaintiff and for the defendant, that plaintiff take nothing by her second amended complaint and that costs of the action be taxed to the plaintiff.

IT IS THEREFORE CONSIDERED, ADJUDGED AND DECREED by the Court that the plaintiff take nothing by this action, and that the defendant recover of the plaintiff its costs laid out and expended, and plaintiff now prays an appeal to the Appellate Court of Indiana.'

The sole assignment of error here is the sustaining of the Appellee's demurrer to Appellant's Second Amended Complaint.

We must determine in this case whether the allegations in rhetorical paragraph 20 of the Plaintiff-Appellant's Second Amended Complaint together with the exhibits are sufficient within the meaning of Burns' Ind.Stat.Ann., § 48-8001, to withstand a...