Hardebeck v. City of Anderson

• Decision Date: 02 September 1965
• Docket Number: No. 20021,No. 1,20021,1
• Citation: 209 N.E.2d 769,137 Ind.App. 455
• Parties: Ida Rose McClintock HARDEBECK, Deceased, Clarence Hardebeck and Al S. Woolbert, Co-Administrators of the Estate of Ida Rose McClintock Hardebeck, Appellants, v. CITY OF ANDERSON, Appellee
• Court: Indiana Appellate Court

Page 769

209 N.E.2d 769

137 Ind.App. 455

Ida Rose McClintock HARDEBECK, Deceased, Clarence Hardebeck and Al S. Woolbert, Co-Administrators of the Estate of Ida Rose McClintock Hardebeck Appellants, v. CITY OF ANDERSON, Appellee.

No. 20021.

Appellate Court of Indiana, Division No. 1.

Sept. 2, 1965.

[137 INDAPP 456] Al S. Woolbert, Anderson, Albert W. Ewbank, Indianapolis, for appellants.

Schrenker & Anderson, Anderson, W. Wilson Wheatley, Tipton, for appellee.

PRIME, Presiding Justice.

This action was originally instituted by Ida Rose McClintock, later remarried to Clarence Hardebeck, against the City of Anderson, Indiana, to recover damages for personal injuries incurred by reason of a fall in a building known as the Juvenile Center in the City of Anderson. The complaint alleged that she slipped on a mat which was lying on the floor inside the door of the building thereby causing her to fall and sustain broken bones in her leg, which caused permanent injuries.

[137 INDAPP 457] The plaintiff is now deceased as is Clarence Hardebeck, her husband, who was co-administrator of plaintiff's estate. This appeal is pursued by Al S. Woolbert, the remaining co-administrator.

Trial by jury resulted in a verdict for the plaintiff in the sum of $18,000.00 upon which judgment was rendered by the court. Thereafter, on November 15, 1962, the City of Anderson filed its Motion for a New Trial setting out twenty specifications of error.

On April 2, 1963, which was some four months later, and after the death of the plaintiff, the court granted the Motion for a New Trial in the following language:

'Comes now the court and the defendant, City of Anderson, having filed its motion for a new trial, the court now sustains said motion for trial for the following reasons:

'1. The plaintiff did not prove and introduced into evidence her Exhibit 'A' which is her notice to the City of Anderson, which this court finds necessary for the reason that the defendant in its answer denies all the material allegations of the plaintiff's amended complaint. This being a material allegation of the plaintiff's amended complaint, it was necessary for the plaintiff to prove and introduce into evidence the written notice to the City of Anderson pursuant to the directives of the Supreme Court of Indiana as set out in City of Indianapolis v. Evans , 24 N.E.2d 776, which this court must follow.

'2. Instruction No. 29 and Instruction No. 36 submitted to the court by the parties herein as well as the instruction on the liability insurance policy introduced into evidence are inconsistent with each other.

'In view of the foregoing reasons, the court sustains the motion of the defendant, and hereby grants a new trial in the above entitled cause of action.'

From this sustaining of the motion for new trial the plaintiffs appeal.

[137 INDAPP 458] This court must therefore determine what is required, in a tort liability case against a municipality, to prove that notice was given to the city of the injury as set out in the Acts of 1935, Ch. 80, Sec. 1, p. 235, same being, Burns' Sec. 48-8001. The appellee contends that the notice must be introduced into evidence to prove that notice was given.

The appellants contend that ample proof was made by testimony of witnesses and by reason of the fact that a copy of the letter written by the plaintiff to the City, in which notice of the injury was given, was made a part of the complaint and was marked Plaintiff's Exhibit 'A.' Notice was also pleaded as a paragraph of the complaint.

In order to obtain a complete picture of the steps taken by the plaintiff reflecting the question of notice, we deem it advisable to set out the paragraph of the complaint in which notice was pleaded.

'3. That plaintiff was without fault or negligence in this incident and that this plaintiff sent notice of her injuries through the United States Mail to the Clerk of the City of Anderson, Madison County, Indiana, and to the Mayor of the City of Anderson, Madison County, Indiana, respectively, a copy of which notice is filed separately in this cause, and made a part thereof, and marked Plaintiff's Exhibit 'A."

The following appears in the record:

'Comes now the Court and plaintiff's Exhibit A referred to the complaint consisting of notice to the defendant of claim is filed and ordered made a part of record in this cause, which Exhibit A is in the words and figures following, to-wit:

'And. Ind.

July 9/59

'Mayor----

City of And----

I--Ida McClintock am fileing a damage claim [137 INDAPP 459] against the City of And--for damages which I am suffering from a fall on or about June 2nd or 3rd I had been in Juvenile Office Dept. for information from Cpt. Whittinger At the time of this entry to his office--my deposit in parking meter didn't register--this I explained to him & he said if I had a ticket to Bring it Bank to him--I was returning with the parking ticket when entering the door of Bldg-I slipped on floor & my right foot hit the Stair Way in the hallway, Breaking my right ankle in three places--I have been hospitalized 17 days & I am in a cast & will wear same for one month. At the time of this fall--Mrs. Siebold helped me up & Mrs. Lenora Hurley 910 Park Ave--City--an employee of the Light plant helped me.

'I am in debt to St. Johns Hospital, Dr. Reed, Dr. Bridges Massengills Health Center for Wheel Chair & my loss of Work & my care during this convalscence. I am at 224 W 6th St. P-2-1437--Hopeing to hear from you soon----

'Respectifylly

'/s/ Mrs Ida McClintock

'I, Marie Sylvester Riggs, City Clerk of Anderson, Madison County, Indiana, on this 19th day of December 1960, do hereby certify that the attached is a true and exact copy of Claim filed July 13, 1959 with Ernest W. Coburn, City Clerk. Said Claim not on file in the office of the City Clerk, Anderson, Indiana.

'/s/ Marie Sylvester Riggs

Marie Sylvester Riggs

City Clerk

'Anderson, Indiana'

The following is a partial review of the testimony touching upon the notice given:

Ralph Ferguson, Mayor of Anderson, Indiana:

'Q. * * * Let's put it this way, if there was a notice to the city sometime the middle part of July * * * then your conversation had to occur, as far as you know, before then, because you are [137 INDAPP 460] the one that told her to file a claim with the city?

'Q. That's right.

* * *

* * *

'Q. Ida told you that she had been injured in one of the city buildings did she not?

'A. She had told me that, yes.

'Q. And did you tell her at that time that we carry insurance and liability insurance that would cover that, and if you are injured there (then) to file a claim?

'A. I think the conversation was this way, that she said she had been injured on city property, which I didn't know anything about, at the time. And she asked me what she should do, and I said the only thing I know you can do in these cases is to file your claim with the City Clerk. So, that is all I said.'

Ida McClintock Hardebeck, Plaintiff:

'A. They had me in a cast up to my hips, and they had me sitting in a wheel chair, and Ralph Ferguson, the Mayor, came in to see his mother. Her room was right there where I was sitting and he asked me what I had did. And I told him. He asked me if I had filed a claim, and I told him I hadn't. And he told me to file one.

'Q. Did you get ahold of me?

'A. I did.

'Q. Did I come to the hospital?

'A. Yes, you did.

'Q. And you filed a claim?

'A. I did.'

Captain Whittinger, Police Officer:

'Q. And, how did you happen to go out to Mrs. McClintock's?

'A. Chief Heyden sent me out there.

'Q. And, do you know what in reference you went out there?

[137 INDAPP 461] 'A. I had been on vacation, and I came back, and the Chief called me to his office and he said that Mrs. McClintock, who was over to see me prior to that had been in St. John's Hospital and she had slipped while at the Juvenile Center, and hurt her leg, and the Chief sent me down to talk to Mrs. McClintock.

'Q. Did he say that the Mayor had suggested to him, or----

'A. No, Chief Heyden told me to go.'

The trial court cites the case of City of Indianapolis v. Evans (1940), 216 Ind. 555, 564, 565, 24 N.E.2d 776, as his authority and reason for granting the motion for new trial. In this case the court stated:

'* * * [T]he giving of said notice is a condition precedent to a right of action. That facts showing the giving of the notice required by said section must, therefore, be alleged in the complaint, or it will be insufficient on demurrer.

* * *

* * *

'It is also fundamental that an answer in general denial, filed to a complaint, places the burden upon the plaintiff to prove all the material allegations of his complaint. Since appellee alleged in her complaint that notice as required by the statute was given, and as such an allegation is a material allegation, it follows that she must prove the same. If she fails to make such proof, she has failed to prove the material allegations of her complaint and a verdict returned in her favor would not be sustained by sufficient evidence.'

Since the complaint did allege that notice was given, we hold that it was properly pleaded. In respect to whether or not the notice was proved requires further analysis. The appellants cite Aaron v. City of Tipton (1941), 218 Ind. 227, 235, 32 N.E.2d 88, a later case than Evans, supra, in support of their contention that notice was given. In this case the following language was employed:

[137 INDAPP 462] 'Our notice statutes do not purport to set up a condition precedent to the liability of the city, but merely establish a procedural step which was necessary to the remedy of bringing an action to enforce the liability. * * * Its only purpose is to enable the city to make a prompt investigation as to its liability. The notice does not affect the right, it affects only a remedy of the injured--the remedy of instituting and maintaining an action for the collection of the damages.'

The court further stated, at page 230, 32 N.E.2d...