Lynch v. City of Terre Haute, 18331

Decision Date18 December 1952
Docket NumberNo. 18331,18331
Citation123 Ind.App. 282,109 N.E.2d 437
PartiesLYNCH v. CITY OF TERRE HAUTE.
CourtIndiana Appellate Court

Leonard P. Kincade, L. E. Bauer and Jerdie D. Lewis, Terre Haute, for appellant.

Randel & Shandy, Frank S. Rawley and Gambill, Dudley & Cox, Terre Haute, for appellee.

CRUMPACKER, Judge.

The appellant sued the appellee, City of Terre Haute, Indiana, for damages resulting to his automobile when it was negligently struck by a fire truck owned and operated by said city and upon which a policy of public liability insurance was in force at the time. Although briefs of counsel do not so show, a search of the record discloses that his complaint alleges no written notice of said accident was served on said city within 60 days from the date thereof, as provided by Burns' Stat. § 48-8001, and a demurrer to the complaint was sustained for that reason. The appellant refused to plead over and judgment went against him. He bases this appeal on the charge that the court's ruling on the demurrer was erroneous and contends that when a city's liability for damages, growing out of an accident of the character described in the complaint, is covered by an insurance policy the 60 day notice, otherwise required by law, is waived and the allegation that none was given is immaterial.

Section 48-8001, supra, provides, among other things, that before an action of any kind for damages arising through the negligence of a municipal corporation can be brought written notice of the occurrence complained of shall be served upon the city and that such notice shall set out a brief description of such occurrence, its time, place, condition and cause, and injuries suffered as the result thereof. In construing this statute the Supreme Court has said: 'It seems well settled by the decisions of this court and other courts, * * * , the 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.' City of Indianapolis v. Evans, 1940, 216 Ind. 555, 24 N.E.2d 776, 780. In reaching this conclusion the court followed the ruling in Touhey v. City of Decatur, 1911, 175 Ind. 98, 93 N.E. 540, 542, 32 L.R.A., N.S., 350, wherein it is said concerning § 8962, Burns' Stat. 1908, which as far as this question is concerned is the same as § 48-8001, supra: 'The provisions of said section are mandatory, and the giving of said notice is a condition precedent to a right of action. Facts showing the giving of the notice required by said section must therefore be alleged in the complaint or the same will be insufficient on demurrer.'

These holdings, however, seem to have been made doubtful law by the decision in Aaron v. City of Tipton, 1941, 218 Ind. 227, 32 N.E.2d 88, 91, wherein the court said: '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.' The court then quotes with approval a decision of the Supreme Court of Kansas which holds the serving of notice is no part of a plaintiff's cause of action but is merely a procedural step in the remedy. The cause of action accrued with the happening of the occurrence complained of and when the damages were sustained. Fuller v. State Highway Comm., 1934, 140 Kan. 558, 38 P.2d 99, 95 A.L.R. 1186. Thus, it is asserted, a cause of action can be pleaded without alleging notice and there are no justifiable grounds for sustaining a demurrer for want of facts because of a failure to allege matters that are not a part of said cause.

However plausible such argument may be we find it unnecessary to determine its validity nor do we deem it necessary to resolve any doubt the Aaron decision casts upon the rule laid down by the earlier cases. The pleading before us shows on its face, by specific allegation, that a necessary...

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9 cases
  • McLean v. City of Spirit Lake
    • United States
    • Idaho Supreme Court
    • July 27, 1967
    ...nature to a statute of limitations, (See: Brandner v. City of Aberdeen, 78 S.D. 574, 105 N.W.2d 665 (1960); Lynch v. City of Terre Haute, 123 Ind.App. 282, 109 N.E.2d 437 (1952); City of South Norfolk v. Dail, 187 Va. 495, 47 S.E.2d 405 (1948)), I.C. § 50-2010 is couched in mandatory langua......
  • Galbreath v. City of Indianapolis
    • United States
    • Indiana Appellate Court
    • June 26, 1969
    ...v. Closser, supra, the notice was properly served upon one of the officials designated in the statute. In Lynch v. Terre Haute, 123 Ind.App. 282, 109 N.E.2d 437 (1952), service of a written notice was not alleged in the complaint which was the basis upon which this court affirmed the sustai......
  • Thompson v. City of Aurora
    • United States
    • Indiana Appellate Court
    • July 16, 1974
    ...court discussed the issue of whether compliance with § 48--8001, supra, must be alleged and held as follows: 'In Lynch v. Terre Haute, 123 Ind.App. 282, 109 N.E.2d 437 (1952), service of a written notice was not alleged in the complaint which was the basis upon which this court affirmed the......
  • Strickler v. Sloan, 18806
    • United States
    • Indiana Appellate Court
    • May 1, 1957
    ...is insufficient upon demurrer if the complaint shows the time has expired. Cox v. Hunter, 1881, 79 Ind. 590; Lynch v. City of Terre Haute, 1952, 123 Ind.App. 282, 109 N.E.2d 437; Continental Casualty Co. v. The Benny Skou, 4 Cir., 1952, 200 F.2d In Cox v. Hunter, supra, the court said: '* *......
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