Town of French Lick v. Allen

• Decision Date: 16 February 1917
• Docket Number: 9,587
• Parties: TOWN OF FRENCH LICK v. ALLEN
• Court: Indiana Appellate Court

115 N.E. 79

63 Ind.App. 649

TOWN OF FRENCH LICK v. ALLEN

No. 9,587

Court of Appeals of Indiana

February 16, 1917

From Washington Circuit Court; Emmett C. Mitchell, Special Judge.

Action by Lillie Allen, by her next friend, Nathan Allen, against the Town of French Lick. From a judgment for plaintiff, the defendant appeals.

Reversed.

Talbott & Roland and Wilbur W. Hottel, for appellant.

Perry McCart, Arthur McCart and Elliott & Houston, for appellee.

OPINION

IBACH, P. J.

This case again comes to us on a petition for rehearing and a majority of the court have concluded that appellant's brief is sufficient in form to present some of the errors assigned for review. The action is to recover damages for injuries alleged to have been sustained by appellee from falling on one of appellant's streets. There was a trial by a jury, with verdict and judgment for appellee for $ 2,000.

It is appellant's contention that the trial court erred in overruling appellant's demurrer to the complaint because the notice given to appellant was insufficient in that it did not state the place where the injury was received, nor did it state the nature of the plaintiff's injury, nor was the cause of plaintiff's injury clearly set forth in the notice.

It is well settled that the failure to give the notice required by § 8962 Burns 1914, Acts 1907 p. 383, 408, precludes the right to maintain the action. The notice required by this statute must be in writing and must "contain a brief general description of the time, place, cause and nature of the injury." Touhey v. City of Decatur (1910), 175 Ind. 98, 93 N.E. 540, 32 L.R.A. (N.S.) 350; City of East Chicago v. Gilbert (1915), 59 Ind.App. 613, 108 N.E. 29, 109 N.E. 404.

The notice, which is annexed to and made part of the complaint so far as it relates to the place where appellee received her injuries, is as follows: "Lillie Allen fell on a street in your town leading from said town to the French Lick and Hillman public highway on the hill south of the street car barn where said street is being improved. As a result of the fall she was cut and bruised on and over her face and on her body and limbs. That said fall was caused by the uneven surface of the street and sidewalk and said street and by failure to have such defective place guarded or lighted."

The law is also well settled that in determining whether the time the place and the nature of the injury, etc., are disclosed in the notice with sufficient clearness and definiteness so as to meet the requirements of the section of the statute, supra, the rules of liberal construction will be applied and relief will not be denied when by any fair and reasonable construction it can be said that the notice substantially complies with the statute. City of East Chicago v. Gilbert, supra, and cases cited.

In cases where this rule has been applied, however, it has been held that "to be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice. * * * The notice must be sufficiently definite in itself to enable a person of ordinary capacity, with knowledge of the physical condition of the streets, in the exercise of reasonable diligence, to locate the place of injury." Sollenbarger v. Town of Lineville (1909), 141 Iowa 203, 119 N.W. 618, 18 Ann. Cas. 991, and cases cited.

Many other cases wherein the same question has been considered and like language used have been collated in the recent case of City of East Chicago v. Gilbert supra, so that it will serve no good purpose to repeat them here. It is sufficient to say that the courts of all the states having similar statutes...