City of Anniston v. Rosser, 7 Div. 546

CourtSupreme Court of Alabama
Writing for the CourtLIVINGSTON
Citation275 Ala. 659,158 So.2d 99
PartiesCITY OF ANNISTON v. Bertha Kelley ROSSER.
Docket Number7 Div. 546
Decision Date01 August 1963

Page 99

158 So.2d 99
275 Ala. 659
CITY OF ANNISTON

v.
Bertha Kelley ROSSER.
7 Div. 546.
Supreme Court of Alabama.
Aug. 1, 1963.
Rehearing Denied Dec. 12, 1963.

[275 Ala. 660]

Page 100

Emerson, Watson, Wilson & Propst, Anniston, for appellant.

Robt. C. Dillon, Anniston, for appellee.

LIVINGSTON, Chief Justice.

This appeal is from a final judgment awarding $2500 to the appellee, Bertha Kelley Rosser, in an action against the appellant, the City of Anniston, a Municipal Corporation, to recover damages resulting from injuries received by the appellee when she stepped into an open water meter receptacle of appellant located approximately in front of her residence.

[275 Ala. 661] The complaint as last amended contained three counts, each, in substance, charging the City of Anniston with negligently leaving such water meter box uncovered.

Count 1 alleges, in substance, that plaintiff was injured while walking or running on a public highway or street across a plot of grass between the sidewalk and the curbing, approximately in front of her residence, when she stepped into an open water meter receptacle approximately 18 inches in depth. Appellee alleged that her injuries were directly and proximately caused by an agent, servant or employee of the City of Anniston, Alabama, acting within the line and scope of his employment as such servant, agent or employee in removing the cover of said water meter and thereafter negligently failing to replace said cover.

Count 2 is substantially the same as Count 1 with the exception that it avers that plaintiff was injured while crossing a portion of said public highway in front of her residence, as opposed to approximately in front of her residence, as stated in Count 1.

Count 3 is similar to Count 1 with the exception that in this Count, appellee avers that 'said hole or receptacle remained in said public highway or public street for an unreasonable length of time, and as a proximate consequence of stepping in said hole or receptacle she was injured and damaged as follows,' etc.

Each of the three counts avers that on, to wit, the 20th day of August, 1959, the appellee filed with the City Clerk of the City of Anniston a sworn statement which stated substantially the manner in which her injuries were received and the day, time and place where the accident occurred, and the amount of damages claimed.

Page 101

Appellant interposed the plea of general issue in short by consent, with leave, etc.

There are 13 assignments of error, only 8 of which are argued in brief. The 8 argued assignments of error present in various forms three principal questions for review: (1) Was the statement of claim filed with the city sworn to in the manner and form exacted by the statute? (2) Was there a fatal variance between the statement of claim filed with the city and the evidence offered in support thereof? (3) Whether or not there was sufficient proof to support an award of damages for any expenditures made or obligations incurred by appellee for doctors' services.

The case must be reversed because of a fatal variance between the claim filed by the city and the evidence introduced in support of the claim.

Sec. 504 of Title 37, Code of Alabama 1940 (Recompiled Code of 1958), is as follows:

'Statements, claims, or demands for injury filed.--No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed.' (Emphasis supplied.)

Following appellee's statement of claim was an affidavit, as follows:

'* * * did depose and say that she is the claimant in the above claim against the City of Anniston, and that the allegations set up therein are true to the best of her knowledge, information and belief.

'Bertha Kelley Rosser'

Appellant argues that a verfication that a claim filed against a city for personal injuries is true to the best of one's knowledge, information and belief is an insufficient compliance with the statute. In support of this argument, appellant cites numerous decisions of this Court to the effect that such a...

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17 practice notes
  • City of Prattville v. Joyner
    • United States
    • Supreme Court of Alabama
    • 12 Mayo 1995
    ...v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99, are authority that the purpose of § 504 is to apprise the city of the accident so it may investigate and determine the merit......
  • Stabler v. City of Mobile
    • United States
    • Supreme Court of Alabama
    • 6 Septiembre 2002
    ...(Ala.1985), should apply in this case. In Diemert, this Court stated, "it must be remembered that at the time City of Anniston [v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963)] was written, strict compliance with the notice statutes was required. As Ex parte City of Huntsville and the cases up......
  • Parton v. City of Huntsville
    • United States
    • Supreme Court of Alabama
    • 29 Septiembre 1978
    ...of litigation if the circumstances warrant. Hunnicutt v. City of Tuscaloosa, Ala., 337 So.2d 346 (1976); City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963); City of Florala v. Presley, 47 Ala.App. 94, 251 So.2d 226, Cert. denied, 287 Ala. 727, 251 So.2d 229 (1971). These purposes......
  • City of Montgomery v. Weldon, 3 Div. 221
    • United States
    • Supreme Court of Alabama
    • 9 Febrero 1967
    ...v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99, are authority that the purpose of § 504 is to apprize the city of the accident so it may investigate and determine the merit......
  • Request a trial to view additional results
17 cases
  • City of Prattville v. Joyner
    • United States
    • Supreme Court of Alabama
    • 12 Mayo 1995
    ...v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99, are authority that the purpose of § 504 is to apprise the city of the accident so it may investigate and determine the merit......
  • Stabler v. City of Mobile
    • United States
    • Supreme Court of Alabama
    • 6 Septiembre 2002
    ...(Ala.1985), should apply in this case. In Diemert, this Court stated, "it must be remembered that at the time City of Anniston [v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963)] was written, strict compliance with the notice statutes was required. As Ex parte City of Huntsville and the cases up......
  • Parton v. City of Huntsville
    • United States
    • Supreme Court of Alabama
    • 29 Septiembre 1978
    ...of litigation if the circumstances warrant. Hunnicutt v. City of Tuscaloosa, Ala., 337 So.2d 346 (1976); City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963); City of Florala v. Presley, 47 Ala.App. 94, 251 So.2d 226, Cert. denied, 287 Ala. 727, 251 So.2d 229 (1971). These purposes......
  • City of Montgomery v. Weldon, 3 Div. 221
    • United States
    • Supreme Court of Alabama
    • 9 Febrero 1967
    ...v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99, are authority that the purpose of § 504 is to apprize the city of the accident so it may investigate and determine the merit......
  • Request a trial to view additional results

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