City of Birmingham v. Weston

• Decision Date: 18 February 1937
• Docket Number: 6 Div. 993
• Citation: 233 Ala. 563,172 So. 643
• Parties: CITY OF BIRMINGHAM v. WESTON.
• Court: Alabama Supreme Court

172 So. 643

233 Ala. 563

CITY OF BIRMINGHAM v. WESTON.

6 Div. 993

Supreme Court of Alabama

February 18, 1937

Rehearing Denied March 4, 1937

Appeal from Circuit Court, Jefferson County; J.Q. Smith, Judge.

Action by Minnie Lee Weston, a minor, suing by her next friend, Sara Stone, against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Clarence Mullins, W.J. Wynn, and Harvey T. Deramus, all of Birmingham for appellant.

Chas W. Greer and Frank B. Irwin, both of Birmingham, for appellee.

KNIGHT Justice.

Suit by plaintiff, appellee, against the defendant, appellant, to recover damages for personal injuries alleged to have been received by her on December 21, 1933, at or near the intersection of Nineteenth street and Twenty-Third Avenue North, in Birmingham, Ala. The injuries consisted of a gunshot wound in the head. The plaintiff was a negro girl under ten years of age, and was at the time walking along a roadway of said city.

It is averred in counts 7 and 8, the only counts in the complaint at the time the case went to the jury, that the city of Birmingham was, on the day of the accident, engaged in making improvements on its streets, and for that purpose was loading and hauling slag at, and from, a point near the intersection of Nineteenth street and Twenty-Third Avenue North; that the appellant had one J.D. Downey as its agent or servant, and foreman in charge of said work at the time; that the men engaged in the work were city prisoners, and said Downey was acting at the time in the dual capacity of policeman guarding the prisoners, and as foreman directing the work.

It is averred in the seventh count that the "said J.D. Downey while acting within the line and scope of said concurrent duties as said foreman and as said police officer for the defendant, city of Birmingham, did wantonly shoot the plaintiff with a pistol, thereby causing plaintiff to suffer and sustain all the damages and injuries set forth and described in count 4 of her complaint." In count 8 of the complaint it is averred "that the said J.D. Downey, while acting within the line and scope of said concurrent duties as said foreman and as said police officer for the defendant, city of Birmingham, did negligently fire a pistol across a public street in said city, thereby causing the plaintiff to suffer and sustain all the damages and injuries set forth and described in count 4 of her complaint. And the plaintiff avers that all of her said injuries proximately resulted from the negligence of the said J.D. Downey while acting within the line and scope of his employment as a servant, agent or employee of the defendant, the city of Birmingham, in and about carrying out his said concurrent duties as foreman in charge of said work, and as said police officer guarding said men engaged in said work as aforesaid."

Each of said counts 7 and 8 averred that at the time plaintiff received her injuries, the basis of the suit, she was a minor under ten years of age, and was mentally and physically unable to give the defendant, within ninety days from the receipt of her injury, the notice required by section 12 of the Act approved August 20, 1915, Gen.Acts 1915, pp. 294, 298, but that plaintiff did, by her next friend, Sara Stone, file a claim against the defendant, City of Birmingham, of her injuries, and which said claim was received by the City of Birmingham on the 27th day of March, 1934.

A copy of the claim filed with the city was sworn to presumably by the said Sara Stone, on March 19, 1934, and it shows that it was not filed with the city clerk until March 27, 1934.

There were numerous grounds of demurrer to counts 7 and 8, but the court, being of the opinion that the counts stated a cause of action against the defendant, overruled the demurrers. Some of the demurrers took the point that each of the counts failed to aver facts showing that said Downey, at the time of the accident, in doing the things charged against him, was engaged in a corporate or ministerial duty; and that for aught averred, the said Downey, on the occasion complained of, was a police officer of the defendant engaged in a duty in furtherance of a governmental duty.

We consider the question presented by the above-stated grounds of demurrer foreclosed against the appellant, and in this particular the counts were sufficient to hold the appellant answerable for the tort charged in the complaint. Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; Id., 216 Ala. 661, 114 So. 55; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169.

It is next insisted that the complaint was subject to defendant's demurrer in that it affirmatively appeared that no claim was filed with the clerk of the City of Birmingham, or with the city officer corresponding thereto, by the plaintiff, or by any one in her behalf, within ninety days from the receipt of the injury, as required by section 12 of the Act of the Legislature of 1915, approved August 20, 1915, Gen.Acts 1915, pp. 294, 298, and that the failure to file the claim within the time required by the act in question prevented a recovery in the cause.

Section 12 of the act of 1915, supra, provides: "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, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides."

This court has given its unqualified approval to the following statement of the law, with respect to such requirements, made by Judge Dillon: " 'Statutes requiring the presentation of notice of claim to designated municipal or public authorities before any action shall be brought and within a specified period after the cause of action may have accrued have often been sustained as valid enactments in the case of claims growing out of torts on the ground that the liability of the municipality for tortious claims is only statutory in its origin, and the Legislature may attach such conditions to the right to recover from the municipality for the tort as it deems proper or expedient.' 4 Mun. Corp. (5th Ed.) § 1613." Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874, 875. See, also, Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am.St.Rep. 54.

It is also firmly established by the decisions of this court, as well as elsewhere, that the filing of the statement is not only mandatory but is a condition precedent to the bringing of an action against the municipal corporation for any cause to which they relate. In order to maintain such action, the filing of the claim in substantial compliance with the statute must be averred in the complaint and proved. Barrett v. City of Mobile, supra; Grambs v. City of Birmingham, supra; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; Bland v. City of Mobile, 142 Ala. 142, 37 So. 843; Perrine v. Southern Bitulithic Co., 190 Ala. 96, 99, 66 So. 705, 706; 49 Corpus Juris, 145, § 157.

The plaintiff, however, has attempted to excuse the failure to file the required statement within the prescribed time by averring that at the time she received her injuries she...