City of Birmingham v. Scott

• Decision Date: 19 April 1928
• Docket Number: 6 Div. 106
• Citation: 117 So. 65,217 Ala. 615
• Parties: CITY OF BIRMINGHAM v. SCOTT.
• Court: Alabama Supreme Court

117 So. 65

217 Ala. 615

CITY OF BIRMINGHAM v. SCOTT.

6 Div. 106

Supreme Court of Alabama

April 19, 1928

Rehearing Denied May 31, 1928

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for damages by Thomas O. Scott, suing by his next friend Mrs. J.A. Scott, against the city of Birmingham. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code, § 7326. Affirmed.

Horace C. Wilkinson and J.R. McElroy, both of Birmingham, for appellant.

W.A Denson, of Birmingham, for appellee.

ANDERSON C.J.

The amendment to the complaint related to the same injury or subject-matter, was not a departure, and was permissible under section 9513 of the Code of 1923. Indeed, the amendment merely added the fact that the notice as required by the statute was given the city before the suit was brought. Counsel for appellant insists that the amendment should not have been allowed for the reason that the original complaint did not state a cause of action, as an averment that the notice was given was a condition precedent to a recovery and, this being true, there was nothing upon which the amendment could be based and as to which it could not relate back so as to interrupt the statute of limitations, and many cases in other jurisdictions are cited on the subject. It must be observed that our statute, section 9513, is very liberal and quite broad and much more so than many of the statutes or rules of other states. As to whether or not there would be merit in the contention if the original complaint failed to state a cause of action we need not decide, for the reason that the complaint, before amendment, in the case at bar did not fail to state a cause of action. "It is frequently provided by statute or charter that no action shall be maintained against public corporations for personal injuries from defective streets, unless notice thereof and a statement of the claim is filed with a designated official within a certain time. Such provisions constitute conditions precedent within the rule requiring performance thereof to be alleged in the complaint." 4 Am. & Eng.Ency. of P. & P, 659. This rule has been followed by our own court. City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874. We think, however, while a failure to make this averment would make the complaint bad against demurrer, its omission does not render the complaint so abortive that it would not support a verdict or judgment and therefore fail to state a cause of action.

"When the complaint failed to aver and prove the performance of a condition precedent, and defendant moved for a nonsuit, and after the motion was overruled introduced evidence which enabled the plaintiff to supply the defect, it was held that by so doing the objection was waived." Smith v. Compton, 6 Cal. 24.

"If the declaration or complaint fails to aver performance of conditions precedent, but the plea or answer avers performance of such conditions, naming them, the defect in the plaintiffs' pleading is cured." Dayton Ins. Co. v. Kelly, 24 Ohio St. 345, 15 Am.Rep. 612.

"When the declaration fails to aver the performance of a condition precedent, but the evidence shows the performance was proved on the trial, the defect is cured by verdict." Happe v. Stout, 2 Cal. 460; Bailey v. Clay, 4 Rand. (Va.) 346.

"And when the performance of the condition precedent is involved in the issue, and necessary to have been proved or admitted, the failure to aver performance thereof in the declaration will be cured by verdict." Colt v. Root, 17 Mass. 229; Delashman v. Berry, 21 Mich. 516.

While the cases, supra, do not involve the identical point before us, they do, in effect, hold that while to aver and prove performance of the notice is a condition precedent, the failure to make such an averment does not prevent the complaint from being sufficient to support a verdict and judgment, and if it will do that, it does not fail to state a cause of action, notwithstanding it may be defective on demurrer.

Section 12 of the Act of 1915, p. 298, reads as follows:

"No suit shall be brought or maintained nor shall any recovery be had against any such city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received, and the day and time and place where the accident occurred, and the damage claimed,

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