City of Birmingham v. Chestnutt

• Decision Date: 20 May 1909
• Parties: MAYOR, ETC., OF CITY OF BIRMINGHAM v. CHESTNUTT.
• Court: Alabama Supreme Court

49 So. 813

161 Ala. 253

MAYOR, ETC., OF CITY OF BIRMINGHAM v. CHESTNUTT.

Supreme Court of Alabama

May 20, 1909

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Mrs. M. E. Chestnutt against the Mayor and Aldermen of Birmingham. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. D Smith, for appellant.

W. J Wynn, for appellee.

McCLELLAN J.

Action for damages for negligence in the construction, maintenance or repair of a sanitary sewer, in consequence of which injury resulted to plaintiff. The plaintiff is named, in the pleadings, "Mrs. E. M. Chestnutt." The several counts contained, in substance, this averment "Plaintiff avers that she did, on, to wit, 24th day of April, 1906, present her claim for one thousand dollars damages to the mayor and aldermen of Birmingham, and said authorities disallowed said claim." Section 71 of the charter of the city of Birmingham, then in force (Loc. Acts 1898-99, pp. 1391, 1441), provided: "That no suit shall be maintained against the city upon any claim for money until application shall have been made to the board for the payment thereof, and the said application refused in whole or in part, or the board fail at the next meeting to act thereon." It appears from the minutes of the municipality offered in evidence that on May 2, 1906, the petition of "E. M. Chestnutt," among others, for damages on account of sewer, was referred to the judiciary committee, and that on May 16, 1906, the petition of "E. M. Chestnutt," among others, was "disallowed." The original petition by "E. M. Chestnutt" was offered in evidence. It averred that "E. M. Chestnutt" was the owner of the property alleged in the complaint in this action to have been injured, describes the consequences of the alleged wrong, and claims $1,000 as damages. "E. M. Chestnutt" was the husband of plaintiff, and resided with her on the premises. These premises were, in fact, the property of the plaintiff, and not that of her husband. Neither the petition nor any other paper presented in the cause shows, or tends to, that in presenting the claim described in the petition of "E. M. Chestnutt" he acted for or as the agent of Mrs. Chestnutt, his wife. Indeed, the face of the petition avows only a claim by him.

It need hardly be said that to maintain this action plaintiff must sustain in the proof the averment of presentation we have before quoted. There can be, reasonably, no two opinions upon the proposition that to meet the requirements of section 71 the claim must be presented either directly by the party entitled to be compensated by the city, or else by an agent authorized and purporting to so act. If a claim could be presented by one person, and thereby afford the condition to suit raised by the section, and suit be instituted by another, the provision would be largely without force. Among the first, if not the first, reason for the provision precedent to suit as it is, is that the governing body may know who has or claims to have a liability against the city, and it may very readily be conceived that the city authorities would decline to pay or allow a claim on the sole ground that he who filed the claim had no claim in fact, but that another for that wrong did have a just claim that should and would be allowed. It has been often said here, in analogous cases, that the purpose of such provisions is to protect a city or county from the expenses of unnecessary litigation by affording it opportunity to settle and discharge its liabilities without suit. Barrett v. Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54. Neither city nor county authorities can know, as contemplated, of liabilities, unless the claimant is known; nor can they intelligently determine settlement vel non without being so...