Touhey v. City of Decatur

• Decision Date: 06 January 1911
• Docket Number: No. 21,613.,21,613.
• Parties: TOUHEY v. CITY OF DECATUR.
• Court: Indiana Supreme Court

175 Ind. 98

93 N.E. 540

TOUHEY

v.CITY OF DECATUR.

No. 21,613.

Supreme Court of Indiana.

Jan. 6, 1911.

Appeal from Circuit Court, Adams County; J. T. Merryman, Judge.

Action by James Touhey against the City of Decatur. From the judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.Amos P. Beatty and David E. Smith, for appellant. Lewis C. De Voss and Clark J. Lutz, for appellee.

MONKS, J.

Appellant brought this action on August 23, 1909, for injuries sustained on February 19, 1909, by falling through an opening in a sidewalk from which the grate or cover had been removed by a third party. The complaint was in two paragraphs. A demurrer for want of facts was sustained to each paragraph. Judgment was rendered on demurrer against appellant.

At the time of the injury sued for there was in force the following statute: “That no action in damages for injury to person or property resulting from any defect in the condition of any street, alley, highway, or bridge, shall be maintained against any city or town of this state, unless written notice containing a brief general description of the time, place, cause, and nature of such injury, shall, within sixty days thereafter, or if such defect consists of ice or snow, or both, within thirty days thereafter, be given to the clerk or mayor or members of the board of trustees of such city or town.” Section 8962, Burns' Ann. St. 1908.

It is not alleged in either paragraph of the complaint that appellant gave or caused to be given the written notice required by said section. As an excuse for the failure to give said notice it is alleged in each paragraph “that, by reason of said injuries so received as aforesaid, this plaintiff was for more than sixty days thereafter, rendered physically and mentally unable to give written notice containing a brief general description of the time, place, cause, and nature of such injuries, or to cause the same to be given to the clerk, mayor, or members of the common council of this defendant, but that said clerk, mayor, and members of the common council of this defendant did have notice of the time, place, cause, and nature of the plaintiff's injuries within thirty days from the date the same occurred, as a full and detailed account of the same was published in the Decatur Daily Democrat and Daily Times-two daily newspapers of general circulation published within the corporate limits of the defendant city-and that said accounts were read by all the above named officials of the defendant.”

It is insisted by appellant: (1) “That when the person injured was under such mental and physical incapacity as to make it impossible to give or procure such notice to be given, within the time provided in said section 8962, that the failure to give said notice is excused.” (2) “That said provision for notice is for the benefit of the city or town; that they may waive it; and that unless they take advantage of the failure to give notice by answer they have expressly waived such notice.” (3) “That section 8962, supra, is in violation of the fourteenth amendment to the Constitution of the United States and section 23, art. 1, of the Constitution of the state of Indiana.”

The construction and repair of highways is a state function, and they may be constructed and kept in repair by the state, or under state authority, by municipal subdivisions of the state within whose limits they may be needed. Lowe v. Board, 156 Ind. 163, 59 N. E. 466;State ex rel. v. Board, etc., 170 Ind. 595, 610, 611, 85 N. E. 513.

The liability of cities and towns for injuries resulting from defects in the streets, alleys, highways, and bridges is implied from the provisions of the statutes which impose the duty upon such municipalities to keep the streets, alleys, highways, and bridges in repair and give them ample power to provide the means necessary to make such repairs. As said liability rests exclusively uponsaid statutes, it is competent for the Legislature to limit or remove it entirely. The claim being a statutory one, it is clear that said section 8962, supra, providing the conditions upon which an action can be maintained, is not in violation of the fourteenth amendment to the Constitution of the United States or section 23, art. 1, of the Constitution of this state. This is true, because a duty imposed by the Legislature upon cities or towns or a liability against them created by the Legislature may be qualified, limited, or removed by that body. No one complaining of the omission to perform such duty can successfully object to the qualifications and limitations imposed by the Legislature.

Under section 8962, supra, no action can be maintained for an injury “resulting from any defect in the condition of any street, alley, highway, or bridge” unless the written notice required thereby is given as therein provided. The provisions of said section are mandatory, and the giving of said notice is a condition precedent to a right of action. Facts showing the giving of the notice required by said section must therefore be alleged in the complaint or the same will be insufficient on demurrer. These propositions are sustained by the following authorities: Crocker v. City of Hartford, 66 Conn. 387, 34 Atl. 98;Forbes v. Town of Suffield, 81 Conn. 274, 70 Atl. 1023;Bulkley v. Norwich, etc., R. Co., 81 Conn. 284, 287, 129 Am. St. Rep. 212;¹Hoyle v. Town of Putnam, 46 Conn. 56, 61;Fields v. Hartford, etc., R. Co., 54 Conn. 9, 11, 4 Atl. 105;Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42;Breen v. Town of Cornwall, 73 Conn. 309, 47 Atl. 322;Trost v. City of Casselton, 8 N. D. 534, 538, 539, 79 N. W. 1071;Underhill v. Town of Washington, 46 Vt. 771;Jacobs v. City of St. Joseph, 127 Mo. App. 669, 106 S. W. 1072;City of Hastings v. Foxworthy, 45 Neb. 676, 63 N. W. 955, 34 L. R. A. 321, 350;Schmidt v. City of Fremont, 70 Neb. 577, 97 N. W. 830;Goddard v. City of Lincoln, 69 Neb. 594, 96 N. W. 273, and cases cited; Ellis v. City of Kearney, 80 Neb. 51, 113 N. W. 803;McCollum v. City of South Omaha, 84 Neb. 413, 121 N. W. 438;Cunningham v. City of Denver, 23 Colo. 18, 45 Pac. 356, 58 Am. St. Rep. 212;Gay v. City of Cambridge, 128 Mass. 387;Kenady v. City of Lawrence, 128 Mass. 318;Saunders v. City of Boston, 167 Mass. 595, 46 N. E. 98;May v. City of Boston, 150 Mass. 517, 23 N. E. 220;Shea v. City of Lowell, 132 Mass. 187;Huntington v. City of Calais, 105 Me. 144, 73 Atl. 829,Greenleaf v. Naridgwock, 82 Me. 64, 19 Atl. 91;Lowe v. Windham, 75 Me. 113;Moulter v. City of Grand Rapids, 155 Mich. 165, 118 N. W. 919, and cases cited; Erford v. City of Peoria, 229 Ill. 546, 553, 82 N. E. 374;Lucas v. City of Pontiac, 142 Ill. App. 470, and cases cited; Taylor v. Peck, 29 R. I. 481, 72 Atl. 645;Hay v. City of Baraboo, 127 Wis. 1, 105 N. W. 654, 3 L. R. A. (N. S.) 84, 115 Am. St. Rep. 977;Daniel v. City of Racine, 98 Wis. 649, 74 N. W. 553, and cases cited; Sowle v. City of Tomah, 81 Wis. 353, 51 N. W. 571, and cases cited; Morrison v. City of Eau Claire, 115 Wis. 538, 92 N. W. 280, 95 Am. St. Rep. 955;Sollenbarger v. Town of Lineville, 141 Iowa, 203, 119 N. W. 618, and cases cited; Forsyth v. City of Oswego, 191 N. Y. 441, 445, 84 N. E. 392, 123 Am. St. Rep. 605, 608, 609, and note; Purdy v. City of New York, 193 N. Y. 524, 86 N. E. 560;Winter v. City of Niagara Falls, 190 N. Y. 198, 204, 205, 82 N. E. 1101, 125 Am. St. Rep. 540, 543, 545;City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 490, 41 S. W. 704;Williams v. City of Galveston, 41 Tex. Civ. App. 63, 90 S. W. 505; 28 Cyc. 1447-1449; 15 Am. & Eng. Encyc. of L. 483487; 3 Abbott on Municipal Corp. §§ 994, 1061, 1063; Elliott's Roads & Streets (2d Ed.) §§ 642, 643; 1 Shearman &...