Volk v. Michigan City

• Decision Date: 24 March 1941
• Docket Number: 16570.
• Citation: 32 N.E.2d 724,109 Ind.App. 70
• Parties: VOLK v. MICHIGAN CITY.
• Court: Indiana Appellate Court

32 N.E.2d 724

109 Ind.App. 70

VOLK v. MICHIGAN CITY.

No. 16570.

Appellate Court of Indiana, in Banc.

March 24, 1941

Andrew J. Hickey and John B. Dilworth, both of LaPorte, and Robert H. Moore, of Gary, for appellant.

Theron F. Miller, of Michigan City, for appellee.

STEVENSON Presiding Judge.

This action was brought by the appellant to recover damages on account of injuries sustained by her as a result of a fall caused by a defective sidewalk within the corporate limits of the City of Michigan City, Indiana.

The amended complaint alleges generally that the City of Michigan City is a municipal corporation of approximately 30,000 residents and that within said city is a street commonly known as Thurman Avenue. The complaint further alleges that Thurman Avenue is a paved street running east and west and that six or eight feet north of said pavement and paralleling it is a four-foot cement sidewalk; that Thurman Avenue is intersected by Oak Street which runs in a north and south direction. The complaint further alleges that on the 16th day of July, 1939, and for several months prior thereto the appellee had carelessly and negligently permitted a portion of the sidewalk on the north side of Thurman Avenue and on the east side of Oak Street in the City of Michigan City, Indiana, to become and remain out of repair. The amended complaint then describes specifically the negligence of the appellee with respect to the portion of the sidewalk and charges that the appellant, while traveling along said street in a careful and prudent manner, without any notice or knowledge of the existence of said defect caught her foot in said hole and was seriously and permanently injured. To this amended complaint there was attached a copy of the notice served to the city, which notice reads as follows: "To the City of Michigan City State of Indiana:

"You are hereby notified that on the 16th day of July 1939, between the hour of 9:00 and 10:00 A.M. and about 20 minutes until 10:00, I suffered an injury by reason of fall on the sidewalk on the northeast corner of Oak Street and Thurman Avenue. The east and west sidewalk on the north side of Thurman Avenue and on the east side of Oak Street approximately four to six feet from the pavement curb, there was a gap in the sidewalk of approximately one foot wide, where there was no concrete and there was a gully there; that said gully and gap in the sidewalk had been there for some period of time, just how many days I do not know; that as I was walking along with my grandchild I accidentally stepped into the gap or gully, slipped, stumbled, tripped and fell then and there injuring both of my legs and my hip joints; that all the muscles, ligaments, cords, fibers, nerves in my legs and pelvic girdle were sprained, wrenched, twisted and torn loose; that the bones in my right leg and my right hip were wrenched, twisted and torn out of shape, cracked and fractured; that my back was wrenched, sprained and twisted; that every bone, ligament, fiber, nerve, cord, muscle in my back was sprained, twisted and torn loose; that I intend to hold the City of Michigan City liable for damages sustained by me, as a result of this injury.

"Dated this 15th day of August, 1939.

"Mary Volk."

This notice was verified and there is no question raised as to the time or manner of service of the same upon the appellee.

A demurrer was addressed to the amended complaint challenging the sufficiency of the notice for the reason that it nowhere appears in said notice that the defective sidewalk was located within the corporate limits of the City of Michigan City, Indiana. The court sustained this demurrer and the appellant refused to plead further, whereupon judgment was entered against the appellant to the effect that the appellant take nothing by her complaint and the appellee recover costs.

The sole error assigned in this court on appeal is the alleged error in sustaining the appellee's demurrer to the appellant's amended complaint.

Under this assignment of error the sole question presented for our consideration is whether or not this notice, admittedly sufficient in every other respect, regularly served and in due time, is so fatally defective as to defeat the appellant's cause of action because of its failure to recite that the defective sidewalk described was located within the corporate limits of the City of ...