Thompson v. City of Aurora

• Decision Date: 16 July 1974
• Docket Number: No. 1-1073A184,1-1073A184
• Citation: 313 N.E.2d 713
• Parties: William E. THOMPSON and Willa L. Thompson, Plaintiffs-Appellants, v. The CITY OF AURORA, Indiana, et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 713

313 N.E.2d 713

William E. THOMPSON and Willa L. Thompson, Plaintiffs-Appellants, v. The CITY OF AURORA, Indiana, et al., Defendants-Appellees.

No. 1-1073A184.

Court of Appeals of Indiana, First District.

July 16, 1974.

Rehearing Denied Aug. 14, 1974. Opinion Superseded 325 N.E.2d 839.

Douglas R. Denmure, Hartell F. Denmure, Aurora, for plaintiffs-appellants.

William H. Turner, Lawrenceburg, Richard R. Mattingly, Aurora, for defendants-appellees.

LOWDERMILK, Judge.

This action is based upon negligence and the theory of res ipsa loquitur, whereby the plaintiffs-appellants, Thompsons, sought to recover damages from defendant-appellee, City of Aurora, Indiana, for the loss from destruction of their home destroyed by a gas explosion and fire caused from a natural gas leak from the city gas distribution system, under the exclusive control of the City.

Thompsons filed their complaint in two Paragraphs; each legal Paragraph contained a specification of notice to the City, pursuant to IC 1971, 18-2-2-1, Ind.Ann.Stat. § 48-8001 (Burns 1968 Repl.). Appellee City filed answer and denied in each legal Paragraph the allegation that the legal notice of Thompsons' loss had been filed with proper city officials, as alleged, all of which placed the giving of notice at issue.

The cause was submitted to trial by jury and after the close of Thompsons' case in chief City filed its motion for a directed verdict. The court did not instruct on said motion immediately, but a period of time intervened in which the court and the parties researched the law to determine whether Thompsons had failed to make a case because they did not prove in their case in chief that the statutory notice of loss to the City had been legally served, as alleged in the complaint.

Trial was resumed and the court sustained City's motion for directed verdict and the jury was so instructed and returned its verdict for the City and the trial judge entered judgment thereon in favor of the City.

Thompsons timely filed their motion to correct errors with accompanying affidavits which was preceded by the filing of a motion for relief from judgment. Each was by the court shortly thereafter overruled.

Specification one raised by Thompsons was that the notice requirement was merely a procedural step which was not necessary to prove and which operated as a statute of limitations subject to affirmative defense by defendant. Cases too voluminous to mention have heretofore established that the giving of the sixty day notice to a city or other municipality under IC 1971, 18-2-2-1, Ind.Ann.Stat. § 48-8001 (Burns 1968 Repl.), was made the law in order that the city or other municipality would be placed on notice that a person or corporation was claiming to have been damaged through the city's negligence and thereby the city or other municipality would have an opportunity to investigate the facts to determine the credibility of the claim and the prospective lawsuit or settlement which it might anticipate while the evidence was still available.

We must agree with Thompsons' argument that IC 1971, 18-2-2-1, Ind.Ann.Stat. § 48-8001 (Burns 1968 Repl.) does not specifically provide the pleading and proving of the statutory notice.

In the case at bar it must be remembered that Thompsons pleaded the giving of the notice and service thereof on the mayor, all councilmen, and the clerk-treasurer of the City.

Thompsons now argue that the notice statute merely established the procedural step necessary to a common law remedy, not a condition precedent to the liability of a city, and argues further that whether or not the statutory notice was given should have no more bearing on the jury deliberation process of considering material issues such as fault, proximate cause, and damage, than does the question of whether or not the summons was served.

With the latter argument we must agree; however, we are unable to agree that Thompsons made their case without proving the material allegations of their complaint.

In the case of City of Indianapolis v. Evans (1940), 216 Ind. 555, 24 N.E.2d 776, it was held that the giving of statutory notice is a condition precedent to a right of action against the city. Our Supreme Court stated that such notice must be given, alleged, and proved. The court stated as follows:

'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.'

Thompsons contend that the rule in Evans, supra, was relaxed in the case of Aaron v. City of Tipton (1941), 218 Ind. 227, 32 N.E.2d 88, wherein our Supreme Court stated that the notice statute was merely a procedural step required to the remedy of bringing an action to enforce the liability of a city.

In Aaron, a demurrer had been sustained on the gound that the notice to the city had not been verified. The court reversed, stating at page 239, 32 N.E.2d at page 93:

'. . . The verification was a mere formality in the procedural step affecting only the remedy.

It is generally held that there is no vested right in a defense based upon mere informalities not affecting the substantial rights of the parties, and such a defense may be cut off by retroactive statutes. This is especially so when such informalities consist of matters which originally could have been dispensed with by the Legislature. . . .'

We do not have this same question in the case at bar, as there is no question concerning the validity of the notice, the service of the same or the time in which it was served. The only problem we encounter is that Thompsons did not introduce the notice into evidence in their case in chief as required by law.

In the case of Wellmeyer, Admx., etc. v. City of Huntingburg, et al. (1966), 139 Ind.App. 64, 68, 213 N.E.2d 709, this court was asked to decide whether Aaron, supra, stood for the proposition that a party did not need to allege in its complaint compliance with IC 1971, 18-2-2-1, Ind.Ann.Stat. § 48--8001 (Burns 1968 Repl.) supra. Much the same argument was presented in Wellmeyer, supra, as is presented in this case by Thompsons. This court, in Wellmeyer, after discussing the implication of Aaron, supra, stated as follows:

'. . . A careful reading of the Aaron decision leads us to believe that the holding in Touhey v. City of Decatur, supra, is still the law in Indiana; and, that facts showing the giving of the notice required by § 48--8001, supra, must be alleged in the complaint, or the complaint will be insufficient on demurrer. . . .'

In the case of Galbreath v. City of Indianapolis (1969) 145 Ind.App. 80, 88, 89, 248 N.E.2d 553, 558, ¹ this 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 sustaining of a demurrer. Likewise, in Wellmeyer, Admrx. etc. v. City of Huntingburg, et al., 139 Ind.App. 64, 213 N.E.2d 709 (1966), there was no allegation of the service of a written notice as required in Burns' Ind.Stat.Ann., § 48-8001. A demurrer was sustained and this court affirmed. These last two expressions from this court clearly require the service of a written notice on the designated officials pursuant to § 48-8001, and the complaint must allege such. These recent cases by this court are consistent with the statement of our Supreme Court to this same effect in City of Indianapolis v. Uland, 212 Ind. 616, 10 N.E.2d 907 (1937), and of this court in Town of Frankton v. Closser, 107 Ind.App. 193, 20 N.E.2d 216 (1939), and March v. Town of Walkerton Electric Department et al., 135 Ind.App. 30, 191 N.E.2d 519 (1963).'

Thus, it is clear that Thompsons were required in their complaint to allege compliance with § 48-8001, supra, and when such compliance was made an issue by the pleadings of all the parties, Thompsons were required to make their proof of the allegation of service of notice. Thompsons having failed to bear the burden of proof necessary to make their case, the trial court properly sustained the city's motion for a directed verdict.

The next issue raised by Thompsons in this appeal is that the notice requirement, under § 48-8001, supra, has been negated as the result of abolition of sovereign immunity in Indiana. As a corollary to this argument Thompsons urge that the city has waived any right to assert the defense of governmental immunity as a result of liability insurance which has been taken out by the city pursuant to statute. It is our opinion that this issue must necessarily be resolved in favor of the city. At no time in the pleadings or proof at trial was the defense of governmental immunity raised by the city. Thus, governmental immunity was not an issue at trial and cannot be argued on appeal.

Our Supreme Court in Miller v. Griesel (1974), Ind., 308 N.E.2d 701, 704, 705, in discussing the relying on governmental immunity as a bar to a lawsuit, said:

'. . . Whenever such a defense plays no part in the trial court level litigation it would clearly be improper for an appellate court to raise it for the first time on appeal. ....