City of Birmingham v. Shirley

• Citation: 96 So. 214,209 Ala. 305
• Decision Date: 26 April 1923
• Docket Number: 6 Div. 860.
• Parties: CITY OF BIRMINGHAM v. SHIRLEY.
• Court: Supreme Court of Alabama

96 So. 214

209 Ala. 305

CITY OF BIRMINGHAM v. SHIRLEY.

6 Div. 860.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by T. C. Shirley against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

W. J Wynn, City Atty., and W. M. Woodall, Asst. City Atty., both of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellee.

McCLELLAN J.

The appeal is on the record, without bill of exceptions. The plaintiff, appellee, was awarded judgment for personal injuries resulting from his stepping or falling from a "sidewalk" into a "hole or cut" immediately adjacent to or attinging the "sidewalk." The case was submitted to the jury on the averments of count 5. The main insistence for error is rested upon the action of the court in overruling demurrer to count 5.

A condition to the right to sue a municipality of the class to which Birmingham belongs is that, within 90 days "from the receipt of" injury, the party injured shall file with the city clerk a sworn statement descriptive of the injury, etc., and giving the place of residence of the party injured. Gen. Acts 1915, § 12, p. 298. The act of complying with this requisite to enter suit is a fact that may be alleged as such. The act required by the statute is not an element of an injured party's cause of action, but is a condition to his right to implead the municipality upon his cause of action. Whether the adequately averred fact of compliance with the stated statutory prescription is sustained is to be determined from the evidence; the burden to support the allegation being upon the plaintiff. In Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874, the complaint showed upon its face that the sworn statement, conforming to Code, § 1275, before its amplification through the cited act of 1915, did not disclose the inclusion in such statement of the place of residence of the injured party, an informatory recital that was required by section 12 of the act of 1915. In the count (5) under review, the averment sufficiently affirmed compliance with the provisions of the act of 1915.

The amendment of the complaint, through the addition of a count (more than 12 months after the suit was instituted) in which the cause or means of plaintiff's injury was differently described from that to which plaintiff's injury was ascribed in the original complaint, did not introduce a new cause of action for the same injury; the amended count relating back to the institution of the suit, and avoiding the intervention of the statute of limitations of one year. Code, § 5367; Ala. Cons. Iron Co. v. Heald, 154 Ala. 580, 589, et seq., 45 So. 686. Decisions illustrating the application of the rule with respect to mere variance between allegation and proof are not pertinent to the questions pertaining to the amendment of pleading or to the applicability thereto of the statutes of limitation.

The count (5) under review was not rendered faulty by reason of its failure to negative contributory negligence on the part of the plaintiff, a pedestrian. It is manifest that the count does not disclose on its face that plaintiff, on the occasion of his injury, was guilty of contributory negligence.

The last paragraph in count 5 refutes the point taken by ground 10 of the demurrer, which, it appears, was predicated of the concluding provisions of Code, § 1274.

Count 5, reproduced in the report of the appeal, does not aver, or proceed upon the theory, that plaintiff's injury was caused by a defect in the street or sidewalk over which plaintiff, a pedestrian, was moving. Its theory is that his injury was ascribable to a hole or cut in close proximity to and abutting the sidewalk, which was negligently left without warning or signal to persons using the walkway. In the oral charge the court stated a rule of municipal liability, consequent upon municipal duty to safeguard street ways from danger arising from conditions attinging a street, that consisted with the theory upon which the count (5) proceeds. The soundness and present application of the rule stated by the court in that connection is not questioned on this appeal.

The third and fourth grounds of demurrer point these objections to the sufficiency of the count (5): (a) That the defect was not averred to have existed in a public street; (b) and that the averment of defect in the public street was a mere conclusion of the pleader. Both of...