March v. Town of Walkerton Elec. Dept., 19641

• Decision Date: 01 July 1963
• Docket Number: No. 19641,No. 1,19641,1
• Citation: 135 Ind.App. 30,191 N.E.2d 519
• Parties: Frank MARCH, Appellant, v. TOWN OF WALKERTON ELLECTRIC DEPARTMENT et al., Appellees
• Court: Indiana Appellate Court

Page 519

191 N.E.2d 519

135 Ind.App. 30

Frank MARCH, Appellant, v. TOWN OF WALKERTON ELLECTRIC DEPARTMENT et al., Appellees.

No. 19641.

Appellate Court of Indiana, Division No. 1.

July 1, 1963.

Kennerk, Dumas & Burke, Fort Wayne, Taylor & Allen, South Bend, for appellant.

William E. Mills, South Bend, for appellees.

CARSON, Presiding Justice.

This is an appeal from a judgment of the St. Joseph Superior Court No. 2, based upon a finding sustaining an answer in abatement filed by the appellees to the plaintiff's complaint. The appellant filed an action for damages charging the appellees with joint and several negligence in connection with the operation of an electric light utility and electric transmission system, and further that as a result of said joint and several negligence the appellant was seriously injured and was damaged in the amount of $30,000.00.

To the complaint, the appellees separately and severally filed answer in abatement setting up that the appellant had failed to allege and show that written notice had been served either upon the mayor or clerk of the town before the filing of the action as required under provisions of § 48-8001 Burns' 1950 Replacement.

No evidence was introduced, but the matter was submitted to the court for finding and judgment on the issues joined by the plaintiff's complaint, the defendants' answer in abatement and a written stipulation which reads as follows:

'Come now the parties and stipulate and agree that the following facts are true:

'1. That the town of Walkerton is a municipal corporation organized under the laws of the State of Indiana.

'2. That the injuries stated in Plaintiff's Complaint were sustained on the 2nd day of September, 1957; and that no written notice was served on the town of Walkerton by the Plaintiff within Sixty (60) days after September 2, 1957.

'3. That the injury which is the subject of this lawsuit arises from an accident in which certain wires, constructed, owned, and maintained by the town of Walkerton were involved; and that said wires were, at the time of this injury, constructed, owned, and maintained for the purpose of transmitting clectrical current, which electrical current was purchased by the town of Walkerton from the Northern Indiana Public Service Company; and that said electrical current was so purchased for the purpose of re-sale by the town of Walkerton to private consumers within the corporate limits of the town of Walkerton.

'It is further stipulated and agreed by and between the parties that there is not now nor has there ever been any 'Town of Walkerton Electrical Department' as an individual entity.'

The court found for the appellees and rendered judgment as follows:

'1. That it finds for the defendants, Town of Walkerton and Town of Walkerton Electrical Department, and against the plaintiff, Frank March, on its answer in abatement with costs to the plaintiff.

'2. That this action abate as to defendants, Town of Walkerton, and Town of Walkerton Electric Department.'

The plaintiff filed his motion for new trial and set out four specifications in support thereof:

'The finding of the Court on the Answer in Abatement of the Town of Walkerton and Town of Walkerton Electric Department, Defendants, is not sustained by sufficient evidence.

'2. The decision of the Court on the Answer in Abatement of the Town of Walkerton and Town of Walkerton Electric Department, Defendants, is not sustained by sufficient evidence.

'3. The finding of the Court on the Answer in Abatement of the Town of Walkerton and Town of Walkerton Electric Department, Defendants, is contrary to law.

'4. The decision of the Court on the Answer in Abatement of the Town of Walkerton and Town of Walkerton Electric Department, Defendants. is contrary to law.'

The appellant's motion for new trial was overruled on the 16th day of February, 1961 and the appeal is taken from said ruling. This being an appeal from a negative judgment and the matter having been submitted on a stipulation no question is presented for our determination under grounds one and two of the motion for new trial. Hinds, Executor, etc. v. McNair et al. (1955), 235 Ind. 34, 129 N.E.2d 553. City of Angola v. Hulbert et al. (1959), 130 Ind.App. 97, 162 N.E.2d 324, 325.

Therefore we have only to consider whether or not the trial court erred in sustaining the plea in abatement on the question of the written notice as provided for by § 48-8001 Burns' 1950 Replacement which st...