Titus v. Town of Bloomfield
| Decision Date | 16 November 1923 |
| Docket Number | 11,668 |
| Citation | 141 N.E. 360,80 Ind.App. 483 |
| Parties | TITUS v. TOWN OF BLOOMFIELD |
| Court | Indiana Appellate Court |
From Greene Circuit Court; Thomas VanBuskirk, Judge.
Action by Albert B. Titus against the town of Bloomfield. From a judgment for defendant, the plaintiff appeals.
Affirmed.
W. L Slinkard, for appellant.
Allen G. Pate, for appellee.
Action by appellant against appellee to recover damages for injuries alleged to have been sustained as a result of a collision of appellant's automobile with a concrete post, commonly called a "silent policeman," created and maintained by appellee at the intersection of two streets. The complaint is in three paragraphs, to each of which appellee successfully demurred for want of sufficient facts. Appellant refused to plead further, and judgment was rendered that he take nothing, and that appellee recover costs. The only errors assigned and presented are based on the rulings of the court on the demurrers to the second and third paragraphs of complaint.
It is averred in the second paragraph that appellee by order of its town board wrongfully and unlawfully constructed and maintained the post, which was twelve inches square and forty inches high, without any guard, and without a red light or other signal for the guidance of persons using the streets at the intersection of which it stood. The complaint contains no averment that within sixty days after the alleged injuries appellant gave to appellee a written notice as to "the time, place, cause and nature of the injury," which is a statutory prerequisite to the maintenance of "an action in damages" against a city or town "for injuries to a person or property resulting from any defect in the condition of any street." Acts 1907 p. 249, § 8962 Burns 1914. It is contended by appellee, and, such was the holding of the trial court, that the omission from the complaint of any averment that notice had been given to appellee in accordance with the statute, rendered the pleading demurrable. On the other hand, it is urged by appellant that the concrete post alleged to have been constructed and maintained at the street intersection is not a "defect in the condition" of a street within the meaning of the statute; but is a permanent obstruction,--in fact a public nuisance, and having been placed there by agents of the town, the statute requiring written notice as a condition precedent to appellant's right of recovery has no application. The question for determination is: Was the condition created by the maintenance of the concrete post at the street intersection as averred in the complaint, a defect in the condition of the street within the meaning of the statute requiring notice as a condition precedent to an action for damages?
In the interpretation of a statute, regard must be had to its subject-matter and general purpose. Collins v State (1906), 38 Ind.App. 625, 78 N.E. 851; Western Union Tel. Co. v. Braxtan (1905), 165 Ind. 165, 74 N.E. 985. The manifest purpose in the enactment of the statute under consideration was to enable the officers of a city or town to make an investigation of the nature and validity of a claim for damages at a time when the facts could be best ascertained; the purpose being not only to make possible a timely investigation of the alleged defect, but also as to the extent of the injuries claimed. It is obvious that the need for such a statute would be the same whether the injury for which damages are claimed was the result of a defect in the street pavement,...
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