Hummer v. School City of Hartford City, 18358

• Decision Date: 08 June 1953
• Docket Number: No. 18358,18358
• Citation: 112 N.E.2d 891,124 Ind.App. 30
• Parties: HUMMER v. SCHOOL CITY OF HARTFORD CITY.
• Court: Indiana Appellate Court

Page 891

112 N.E.2d 891

124 Ind.App. 30

HUMMER v. SCHOOL CITY OF HARTFORD CITY.

No. 18358.

Appellate Court of Indiana, in Banc.

June 8, 1953.

Peterson & Ervin, Hartford City, Albert A. Abromson, Portland, for appellant.

Warner, Clark & Warner, Muncie, for appellee.

ACHOR, Judge.

This is an action filed by appellant against appellee for damages for personal injuries allegedly sustained by appellant while a spectator at a basketball game conducted by appellee.

Appellant's amended complaint was in two paragraphs. Both paragraphs contained the following allegations relative to such basketball game: That the defendant scheduled said basketball game between the team representing the schools of Hartford City and the team representing the schools of the City of Portland, Indiana, to be held in the gymnasium in the City of Hartford City, Indiana, and so advertised and publicized such game; that the defendant then proceeded to stage, manage and conduct said basketball game on December 15, 1948 for the alleged purpose of furnishing entertainment to the general public in exchange for a monetary consideration and for the further purpose of making pecuniary profit; that appellant was a paid spectator; that the appellee was negligent in permitting the school premises to be in an unsafe condition; that it failed to properly supervise the crowd upon said premises while attending the game, and that appellant was injured as the proximate result of said negligence. Neither paragraph of complaint alleged service of notice upon appellee as provided in § 48-8001, Burns' 1950 Replacement, ch. 80, Acts of 1935, § 1, pp. 235, 236.

In addition to the above allegations, the second paragraph of complaint contained the following allegation:

'11. Plaintiff further alleges that at all times herein mentioned there was in full force and effect a certain policy and contract of insurance between the defendant and the Continental Casualty Company, being Policy No. C. I. 4668312, dated February 11, 1948, under the terms of which said Continental Casualty Company agreed and was and is fully bound to pay on behalf of the defendant all sums which the defendant should become obligated to pay by reason of the liability imposed upon it by law for damages because of bodily injury sustained by any person or persons and caused by accident. That a copy of said policy and contract of insurance is attached hereto, marked 'Exhibit A', incorporated herewith and made a part hereof. Plaintiff further avers that said Continental Casualty Company is fully solvent and amply able to pay and satisfy any judgment obtained herein against the defendant, and that said Continental Casualty Company is defending and will continue to defend this action on behalf of the defendant.'

Appellee filed a motion to strike said rhetorical paragraph 11 as being irrelevant matter. The motion was sustained. Thereafter appellee filed a demurrer for want of facts to each of said paragraphs of amended complaint, which demurrer was sustained. Appellant refused to plead further and judgment was entered that appellant take nothing by his complaint and that appellee recover his costs.

The error assigned is the sustaining of the demurrer and the sustaining of the motion to strike. The following questions were placed in issue by the demurrer: (1) Is the appellee a 'municipal corporation' within the meaning of § 48-8001, supra, and, if so, did failure to allege such notice of the occurrence of the injury make the complaint insufficient on demurrer? (2) Admitting arguendo the fact of negligence, was appellee school corporation liable in damages for injuries suffered by appellant as a result of the negligence of appellee's officers and servants in the maintenance of the school premises and in the management of the crowd, or was the school corporation, a political subdivision of the state, immune from such liability? Furthermore, by its motion to strike out rhetorical paragraph 11 of the second paragraph of amended complaint, appellee raised the following question of law: (3) Was it a material fact, which appellant is entitled to allege, as precluding immunity of appellee as a political subdivision of the State of Indiana from tort liability, that appellee carried a policy of insurance of the type contemplated by § 39-1819, Burns' 1952 Replacement, ch. 52, Acts of 1941, § 2, p. 146?

Upon the question of appellant's failure to allege service of notice upon appellee, earlier cases in this and the Supreme Court have held that the giving of such notice to civil cities must be alleged in the complaint or the complaint would be held insufficient on demurrer. City of Indianapolis v. Uland, 1937, 212 Ind. 616, 10 N.E.2d 907; Sherfey v. City of Brazil, 1938, 213 Ind. 493, 13 N.E.2d 568; City of Rushville v. Morrow, 1913, 54 Ind.App. 538, 101 N.E. 659. However, the Supreme Court of Indiana, in a more recent decision, has held that a cause of action is sufficient against demurrer without alleging the fact of such statutory notice, the reason given being stated as follows:

'* * * The liability of the city is not created by any statute, it arises out of the failure of the city to perform a duty.

'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. * * * The notice does not affect the legal or moral obligation of the city to pay for the damages caused by its negligence. 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.' Aaron v. City of Tipton, 1941, 218 Ind. 227, 235, 236, 32 N.E.2d 88, 91; See also Lynch v. City of Terre Haute, 1952, Ind.App., 109 N.E.2d 437.

It is true that the generic term 'municipal corporation' has been applied to both civil cities and school cities. § 28-2402, Burns' 1948 Replacement, ch. 1, Acts of 1865, § 4, p. 3. However, it is also true that civil cities, which are voluntary corporations of the state, and school cities, counties and townships, which are involuntary subdivisions of the state, are entirely distinct corporations possessing many divergent characteristics, with respect to suits filed by and against such cities. Agar v. Pagin, 1906, 39 Ind.App. 567, 79 N.E. 379; Teeple v. State ex rel., 1908, 171 Ind. 268, 86 N.E. 49; Freel v. School City of Crawfordsville, 1895, 142 Ind. 27, 28, 41 N.E. 312, 37 L.R.A. 301.

Appellant urges further that the scope of the notice statute, as expressly written in both the title thereto and the body thereof, is clearly limited to civil cities and towns. The title of the act is as follows, § 48-8001, supra, ch. 80, Acts 1935, supra:

'An Act concerning the service of notice upon cities and towns before bringing actions against them for damages for loss of or injury to property, or for injury to persons, or for wrongful death, resulting from any nuisance, negligence or wilfulness, in certain respects, of such cities and towns, and repealing all laws in conflict therewith.' (Our italics.)

It is a fact that the term 'cities and towns' employed in the title of the act, by common usage, generally refers to civil cities and towns. 7 Words and Phrases, Cities and Towns, p. 246; Vol. 7, City, p. 295; 42 Words and Phrases, Town, p. 164; City of Indianapolis v. Higgins, 1895, 141 Ind. 1, 10, 40 N.E. 671. The fact that such usage was contemplated by the Legislature is supported by the body of said act, which expressly provides that service shall be '* * * upon either the mayor or clerk of any such city or a member of the board of trustees of any such town * * *.' (Our italics.) The 'mayor' and 'clerk' are officers of civil cities only, and not of school cities. The officers of the boards of school cities are president, secretary and treasurer. § 28-1605, Burns' 1948 Replacement. Every precedent of our law would support an intention to provide for service only upon the officials of the body sought to be held liable in suit.

To say the least, the above facts raise serious doubt as to the construction of the notice statute, § 48-8001, supra, ch. 80, Acts of 1935, supra. Rules of statutory construction requires that this doubt must be resolved against the application of said act to school cities, inasmuch as the act is in derrogation of the common law and must, therefore, be strictly construed. City of Indianapolis v. Wills, 1935, 208 Ind. 607, 194 N.E. 343; Sherfey v. City of Brazil, supra; Aaron v. City of Tipton, supra; City of Gary v. McNulty, 1935, 99 Ind.App. 641, 194 N.E. 193. Similar statutes of other states requiring notice as a condition to recovery have been held to apply only to civil cities, villages and burroughs, and not to school districts. Bohrer v. Village of Inver Grove, 1926, 166 Minn. 336, 207 N.W. 721; Ferris v. Board of Education, 1899, 122 Mich. 315, 81 N.W. 98.

Notwithstanding strong arguments in favor of the service of notice on all municipal corporations, we conclude that the statute, as written, is not applicable to school cities and towns, and that appellant's complaint was not insufficient on demurrer because of his failure to allege service of notice pursuant thereto.

We next consider the major issue of the liability of governmental immunity on the part of appellee school corporation. The general rule upon this issue is stated as follows in 160 A.L.R. at page 38: '* * * In the absence of statutory liability, school districts, school boards, or similar school agencies or authorities are not liable in tort for injuries or damage caused by negligence in the performance of governmental functions.'

There is marked conflict in the reported cases as to whether the staging of an athletic contest under the circumstances alleged is a governmental or...