Castle, Chief Judge, Duffy, Senior Circuit Judge and Fairchild, Circuit Judge.
DUFFY, Senior Circuit Judge.
Plaintiff, an Ohio resident, was an employee of Dana Corporation (Dana) which owned a factory building located in Richmond, Indiana. Defendant Richmond Power and Light is, and was on October 5, 1965, owned and operated by the City of Richmond, Indiana.
The complaint is in four counts. Count I is in negligence and is brought as a third party action under Section 13 of the Indiana Workmen's Compensation Act (Burns' Ind.Stat.Ann. Sec. 40-1213).
Count II is in contract. The claim on this count is that plaintiff is a third party beneficiary of the contract between the Power and Light and Dana, and that defendant breached implied and statutory warranties. Count III is in nuisance, and Count IV charges defendant violated a specific statutory duty (Burns' Ind.Stat.Ann. Secs. 20-304, 5, 6).
The complaint herein alleges that prior to October 5, 1965, the defendant, City of Richmond, Indiana, doing business as Richmond Power and Light, and acting through the individually named defendants, installed in the plant of Dana, an electric transformer with uninsulated high tension electric wires and uninsulated drop wires. The transformer and high tension lines were installed pursuant to a contract with Dana.
It is further alleged in the complaint that after such installation was made, there were uninsulated high voltage wires extending from the transformer along a wall where plaintiff was later assigned to work.
On October 5, 1965, plaintiff, as an employee of Dana, was instructed by his foreman to install on and as part of a wall of a room in the Dana factory (plant 6), a large piece of sheet metal material. While working within thirty inches of a pole supporting the high tension wires, the plaintiff received a severe electrical shock causing him serious injuries.
All of the defendants filed motions to dismiss alleging failure of the complaint to state a claim, in that the complaint failed to allege the giving of the proper statutory notice to the City of Richmond, Indiana, as provided by Burns' Ind.Stat.Ann. Sec. 48-8001.*fn1
The District Court granted the several motions to dismiss. It is not disputed that plaintiff's notice to the City of Richmond was served nearly two years after the date of plaintiff's injuries.
Although several issues are raised on this appeal, the basic question is whether plaintiff is required, in order to maintain this suit, to have given the City of Richmond the sixty-day notice required by Burns' Ind.Stat.Ann. Sec. 48-8001.
In City of Indianapolis v. Evans, 216 Ind. 555, 24 N.E.2d 776, 780 (1940), the Indiana Supreme Court held that notice as required by the statute (Sec. 48-8001) must be pleaded and proved and that the failure to do both precludes maintenance of the action. This decision has not been reversed or modified by the Indiana Supreme Court.
Plaintiff urges that the City of Richmond had actual notice immediately after plaintiff received his injuries but, under Indiana law, such notice is not sufficient. In Touhey v. City of Decatur, 175 Ind. 98, 93 N.E. 540, 542, 32 L.R.A.N.S., 350 (1911), the Court stated: "Appellant's right to maintain an action must be determined from the sufficiency of his notice, and not by the fact that appellee obtained, from other sources, full knowledge of the time, place, cause, and nature of his injury."
In Wellmeyer v. City of Huntingburg, 139 Ind.App. 64, 213 N.E.2d 709, 710 (1966), the Court observed that the holding in Touhey, ...