City of Anniston v. Rosser

Decision Date01 August 1963
Docket Number7 Div. 546
Citation275 Ala. 659,158 So.2d 99
PartiesCITY OF ANNISTON v. Bertha Kelley ROSSER.
CourtAlabama Supreme Court

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.

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.

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 verification is insufficient. True enough, but all of the decisions cited deal with subjects foreign to the issue here to be decided. They deal with verification of claims against estates, mechanics' liens, discovery of assets, vendors' liens, and affidavits for appointment of receivers. We do not think they are apt authorities in the instant case.

We have repeatedly held that technical accuracy is not required by Sec. 504, Title 37, supra, but only substantial compliance is required.

The purpose of the statute requiring notice to the city before bringing suit for injury or death is to enable the municipality to investigate and determine the merits of the claim, Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; and to adjust claims without the expense of litigation if the circumstances warrant. Cole v. City of Birmingham, 243 Ala. 561, 11 So.2d 148; Ray v. City of Birmingham, Ala., 154 So.2d 751; Tolbert v. City of Birmingham, 262 Ala. 674, 81 So.2d 336, 63 A.L.R.2d 901.

It is true that some of the authorities cited construed the requirement of Sec. 659, Title 62, Code of 1940, a local act applying to the City of Birmingham, but for the purposes of the instant case, Sec. 659, supra, is identical with Sec. 504, supra. We said in the Tolbert case, supra:

'The remaining question to be decided is whether the statement of claim filed with the City Clerk on November 22, 1949, meets the requirements of § 659, Tit. 62 Code 1940, supra. We are constrained to hold that it does. We have held that the filing of a claim in accordance with Section 659 is mandatory and a condition precedent to the right to sue the City. But we have also held that substantial compliance will suffice; and that technical accuracy is not required. Cole v. City of Birmingham, 243 Ala. 561, 563, 11 So.2d 148; City of Birmingham v. Hornsby, 242 Ala. 403, 405, 6 So.2d 884; Downs v. City of Birmingham, 240, Ala. 177, 185, 198 So. 231; City of Birmingham v. Weston, 233 Ala. 563, 565, 566, 172 So. 643, 109 A.L.R. 970; Grambs v. City of Birmingham, 202 Ala. 490, 492, 80 So. 874; City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841; McKinnon v. City of Birmingham, 196 Ala. 56, 57, 58, 71 So. 463. The statute does not contemplate that the statement of claim shall be drawn with all the technical nicety of a pleading.

'In discussing the sufficiency of the statement of claim required by Section 659, supra, this court, in City of Birmingham v. Hornsby, supra [242 Ala. 403, 6 So.2d 885], had this to say:

"Our authorities are uniform to the effect that technical accuracy is not required. Substantial compliance suffices. There was...

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17 cases
  • City of Prattville v. Joyner
    • United States
    • Alabama Supreme Court
    • May 12, 1995
    ...Smith 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......
  • Stabler v. City of Mobile
    • United States
    • Alabama Supreme Court
    • September 6, 2002
    ...663 (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 case......
  • Parton v. City of Huntsville
    • United States
    • Alabama Supreme Court
    • September 29, 1978
    ...expense 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 ......
  • City of Montgomery v. Weldon
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    • Alabama Supreme Court
    • February 9, 1967
    ...Smith 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......
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