Thompson v. City of Aurora, No. 475S91

• Docket Nº: No. 475S91
• Citation: 325 N.E.2d 839, 263 Ind. 187
• Case Date: April 17, 1975
• Court: Supreme Court of Indiana

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325 N.E.2d 839 263 Ind. 187 William E. THOMPSON and Willa L. Thompson, Appellants
(Plaintiffs Below),
v.
The CITY OF AURORA, Indiana, et al., Appellees (Defendants Below). No. 475S91. Supreme Court of Indiana. April 17, 1975.

[263 Ind. 188]

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

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

OPINION ON PETITION TO TRANSFER

HUNTER, Justice.

Thompsons sued the city for damages resulting from the destruction of their home by a natural gas explosion [263 Ind. 189] and fire. The city owned and operated the natural gas distribution system.

Thompsons' complaint of two paragraphs was filed August 13, 1969. A sub-paragraph of each main paragraph alleged that notice of the claim, as required by IC 1971, 18--2--2--1, Ind.Ann.Stat. § 48--8001 (Burns 1968 Repl.) had been given to the proper city officials. Defendants answered on January 20, 1970, generally denying that they had received statutory notice. Trial by jury commenced January 22, 1973. At the close of plaintiff's evidence, the trial court directed a verdict for the defendants. The basis of the directed verdict was Thompsons' failure to introduce proof that the required notice had been given. Thompsons' motion to correct errors was overruled. The Court of Appeals, with one judge dissenting, affirmed the trial court's overruling of Thompsons' motion to correct errors. Thompson v. City of Aurora (1974), Ind.App., 313 N.E.2d 713.

In affirming the decision below, the Court of Appeals followed the ruling precedent of City of Indianapolis v. Evans (1940), 216 Ind. 555, 24 N.E.2d 776, which held that giving the statutory notice was a

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condition precedent to maintaining an action against the city. The Evans court stated:

'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.'

216 Ind. 555, 565, 24 N.E.2d 776, 780.

Relying on the language quoted, the Court of Appeals concluded:

'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 [263 Ind. 190] 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.'

Ind.App., 313 N.E.2d 713, 716. (Emphasis added.)

In the opinion which follows, we hold that the statutory notice required by IC 1971, 18--2--2--1, Ind.Ann.Stat. § 48--8001 (Burns 1968 Repl.) is a procedural precedent which need not be pleaded under our new rules of procedure. A plaintiff's failure to give the required notice, however, is a defense which must be asserted in a responsive pleading. In the case at bar, defendant's answer did not assert such defense. Plaintiff was therefore not required to prove that the notice had been given. Hence, defendants' motion for a directed verdict was improvidently granted. We grant transfer, reverse and remand with instructions.

I

A brief account of municipal tort liability in Indiana is useful in placing this case in perspective. At common law, this Court held that the liability of a city for damages attributable to the negligence of its agents was co-extensive with that of natural persons. Ross v. City of Madison (1848), 1 Ind. 281. The common law duty was said to exist despite the absence of a positive statute where the municipal authorities were given the responsibility of keeping property, including streets and sidewalks, in repair and the means were provided for performing the task. Higert v. City of Greencastle (1873), 43 Ind. 574.

The broad common law duty of cities enunciated in the Ross and Higert decisions, supra, was ignored by a line of cases beginning with Touhey v. City of Decatur (1911), 175 Ind. 98, 93 N.E. 540, and climaxing in City of Indianapolis v. Evans, supra. It was the Evans case which the trial court and the court of Appeals found compelling in the case at bar. In [263 Ind. 191] Touhey, we held under a statute similar to the one here involved, that a detailed account of the time, place and nature of plaintiff's injuries published in two newspapers of general circulation did not comply with the statute. Touhey found the requirement of notice to be a condition precedent to a right of action. The notice statute in effect when Touhey was decided, like the statute in effect today, required only that notice be given, and did not require that the notice be pleaded and proved. Under the system of pleading then operative, the court in Touhey stated the familiar judge-made rule that '(W)hen any one seeks the benefit of a statute, or to enforce a statutory right or liability, he must, by allegation and proof, bring himself clearly within its provision.' 175 Ind. 98, 102, 93 N.E. 540, 542. (Emphasis added.) In applying the rule, the Court in Touhey affirmed the

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trial court's sustaining of a demurrer to Touhey's complaint. Touhey's failure to...