City of Birmingham v. Lynch

• Decision Date: 16 May 1940
• Docket Number: 6 Div. 664.
• Citation: 240 Ala. 24,197 So. 48
• Parties: CITY OF BIRMINGHAM v. LYNCH.
• Court: Alabama Supreme Court

197 So. 48

240 Ala. 24

CITY OF BIRMINGHAM v. LYNCH.

6 Div. 664.

Supreme Court of Alabama

May 16, 1940

Rehearing Denied June 20, 1940.

Certiorari to Court of Appeals.

Petition of the City of Birmingham for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case styled City of Birmingham v Martha A. V. Lynch, 197 So. 46.

Writ denied.

THOMAS J., dissenting.

John S Foster, of Birmingham, for petitioner.

John Ike Griffith, of Birmingham, opposed.

PER CURIAM.

Writ denied.

GARDNER C.J., and BOULDIN, BROWN and FOSTER, JJ., concur.

KNIGHT, J., not sitting.

THOMAS, J., dissenting.

On Rehearing.

PER CURIAM.

The appellant, petitioner here, strenuously insists that the court in disposing of this case has ignored all former decisions, and the doctrine of stare decisis; that the court should either grant the appellant's rehearing or overrule Henderson v. Tennessee Coal, Iron & Ry. Co., 190 Ala. 126, 67 So. 414, 416, where it was said, inter alia: "This court, however, will look to all of the record before it for the purpose of ascertaining whether or not the errors shown were probably prejudicial, and even in cases of this kind, where no bill of exceptions is taken, if the given and refused charges are sent up in the record proper, we will look to them for the purpose of ascertaining whether or not the errors were probably injurious. The charges in this case have been sent up as a part of the record, and we find that the general charge requested by the defendant as to count 3 was refused, and which would indicate, in the absence of a bill of exceptions, that there was some proof in support of said count 3, else the charge would have been given. We also note the refusal of a charge requested by the plaintiff, which would prima facie indicate that there was some proof in favor of the defendant's special pleas made the basis of the errors involved. We therefore hold that the appellant has not only shown error, but an examination of the entire record as presented to us, also discloses that said errors were probably prejudicial." [ Italics supplied.]

The argument of petitioner overlooks or ignores the fact that the appeal in Henderson v. Tennessee Coal, Iron & Ry. Co., supra, was direct to this court and the entire record was subject to inspection by the court to ascertain whether or not the errors were "probably prejudicial."

The argument also overlooks or ignores the fact that the Court of Appeals, in like position as was this court in Henderson's case, had the record before it, and after examining the record, without stating the facts further than the conclusion that such examination did not show probable injury, applied the doctrine of error without injury.

This court has uniformly ruled, in such circumstances, that it will not review the Court of Appeals on the application of the doctrine of error without injury. Ex Parte Steverson Robinson v. Steverson, 211 Ala. 597, 100 So. 912; Allie F. Cleghorn v. State, 219 Ala. 155, 121 So. 436; Luther Massey et al. v. State, 224 Ala. 584, 141 So. 259; Powell v. State, 224 Ala. 584, 141 So. 260; Trawick v. State, 217 Ala. 149, 115 So. 79; Parham v. State, 217 Ala. 398, 116 So. 418.

In the case last cited the rule is fully stated as follows: "It is a settled rule that this court, upon certiorari, will review the Court of Appeals only on questions of law and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals." [ 217 Ala. page 399, 116 So. page 418.]

The errors complained of were in respect to the overruling of the defendant's demurrer to some of the counts of the complaint designated by letter A to F. The defect pointed out by the demurrer was that said counts failed to show compliance with the provisions of § 12 of the Act--a general law of local application--approved August 20, 1915, which would deny a recovery by plaintiff "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," &c. Gen.Acts 1915, p. 298.

As the opinion of the Court of Appeals shows, one of the counts--Count "G"--contained the necessary averment required by the statute.

The appeal is on the record without a bill of exceptions, and the only matters set out in the petition for certiorari, to show probable injury, are the refusal of the affirmative charge requested by the defendant as to each of said counts, and the statement of the court in the oral charge, "That brings us to a consideration of what are the material averments of these counts and of each of the counts, with the exception of the date of the overflow or the rain, which I believe is in the different counts."

The refusal of the affirmative charge as to count "G", in the absence of a bill of exceptions showing the contrary, supports the presumption that proof was made of the filing of such claim in compliance with the provision of said statute. If such proof was made covering the occurrences as alleged in the other counts, the error in overruling the demurrer was rendered innocuous. Best Park & Amusement Company v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D, 929; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.

The most that petitioner could expect on this review is that the court examine the record to verify the averments of its petition for certiorari.

The application for rehearing is wanting in merit, and is overruled.

GARDNER, C.J., and BOULDIN, BROWN, FOSTER, and LIVINGSTON, JJ., concur.

THOMAS, J., dissents.

KNIGHT, J., not sitting.

THOMAS Justice (dissenting).

There were several counts declaring for damages on the several assignments of personal and property injuries. All counts, except G, were subject to demurrer for failure of observance of statutory notice to be given and proven in such actions against a municipality. City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63. All counts were submitted to the jury and there was a general verdict for the plaintiff.

If there was evidence to support count G, the verdict may be referred to that count. Such are the decisions of the Court of Appeals by Mr. Justice Samford. American Bankers' Ins. Co. v. O'Neal, 25 Ala.App. 559, 150 So. 562; Bates v. Turney, 26 Ala.App. 98, 153 So. 782. This rule has its limitations. That is to say, it must be shown that such action of the court was error without injury. The appeal is by the city on the record, and the trial is not illustrated by a bill of exceptions.

The Court of Appeals among other things observes, 197 So. 46:

"Each of the amended counts stated separate and distinct causes of action, each claiming damages for an overflow of water occurring on a date different from any date named in any of the other counts of the complaint as amended.

"Each of the counts in the amended complaint claims damages for a separate act, and failing to allege that such claim had been filed with the City Clerk, as required by the above quoted Act, was subject to demurrer. Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874;

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