Lynch v. City of Terre Haute, 18331
Decision Date | 18 December 1952 |
Docket Number | No. 18331,18331 |
Citation | 123 Ind.App. 282,109 N.E.2d 437 |
Parties | LYNCH v. CITY OF TERRE HAUTE. |
Court | Indiana 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.
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: 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:
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: 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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