City of Birmingham v. Prickett

• Decision Date: 08 November 1921
• Docket Number: 6 Div. 485.
• Citation: 207 Ala. 79,92 So. 7
• Parties: CITY OF BIRMINGHAM v. PRICKETT.
• Court: Alabama Supreme Court

92 So. 7

207 Ala. 79

CITY OF BIRMINGHAM v. PRICKETT.

6 Div. 485.

Supreme Court of Alabama

November 8, 1921

Rehearing Denied Dec. 22, 1921.

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by J. F. Prickett against the City of Birmingham for damages for maintaining a nuisance. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Gardner J., dissenting.

Walter Brower and Fred G. Moore, both of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

MILLER J.

This is an action by J. F. Prickett against city of Birmingham for maintaining an alleged nuisance. There was judgment for plaintiff, and the defendant appeals.

Section 10 of an act approved August 20, 1915 (page 297, General Acts 1915) reads as follows:

"Except as herein otherwise provided, all claims against such cities (except bonds and interest coupons, and claims under written contracts for the payment of money signed by the city) shall be filed with the city clerk or the city officer corresponding thereto, within one year from the accrual thereof to be by him presented to the governing body of such city or the same shall be barred; and no claim against such cities shall be sued on until ten days after a statement of same has been filed with the city clerk."

There is one count in the complaint. The defendant demurred to it because it fails to allege the claim within one year from its accrual "was filed with the city clerk or city official corresponding thereto," and "that this suit was commenced more than 10 days after the statement of same was filed with the city clerk."

The complaint has the following indorsement thereon:

"Undersigned, clerk of the city of Birmingham or official corresponding thereto, acknowledges that the foregoing claim was filed with him and that he, as such clerk, received a copy of the foregoing on this the 9th day of August, 1917.

"C. B. Lloyd."

This is an indorsement on the complaint. The complaint must be signed by the plaintiff or his attorney. This is not signed by the plaintiff or his attorney. The complaint, composed of one count, is signed by attorneys for plaintiff. Then plaintiff in writing demands a jury trial, which demand is signed by plaintiff's attorneys. Then follows the foregoing indorsement by C. B. Lloyd. This indorsement is not a part of nor made a part of the count or the complaint by reference to it as exhibit or otherwise. Section 5327, Code 1907; Browder v. Gaston, 30 Ala. 677.

There is no averment in the count or in the complaint over the signature of plaintiff or his attorney that the claim, the foundation of this suit, was filed with the clerk of the city of Birmingham within one year from its accrual and more than 10 days before the commencement of the suit. Is this necessary? Should it be averred in the complaint? Section 10 General Acts 1915, p. 297, requires it of "all claims against such cities (except bonds and interest coupons and claims under written contracts for the payment of money signed by the city)." This claim is neither a bond nor interest coupon, nor written contract, so it must come within "all claims" under the statute. Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54.

"Suits must not be brought against a county until the claim has been presented to the court of county commissioners." Section 2472, Code 1907.

This court under that statute held that the complaint must aver such presentation. Schroeder v. Colbert County, 66 Ala. 137; Shinbone v. Randolph County, 56 Ala. 183.

In Barrett v. City of Mobile, 129 Ala. 185, 30 So. 38, 87 Am. St. Rep. 54, this court held:

"The right to sue the city without first presenting the claim is taken away by the statute."

See Acts 1896-97, p. 542.

The court also declared in that case that-

"The complaint should aver presentation according to the statutory requirement. For want of such averment, the complaint in the present case was subject to the demurrer interposed to it as a whole."

Section 10 of Acts 1915, p. 297, declares: "No claim against such cities shall be sued on until ten days after a statement of same has been filed with the city clerk."

This complaint, as a whole, is subject to the demurrer interposed, as it fails to aver over the signature of plaintiff or his attorney a filing of a statement of the claim with the clerk of defendant more than 10 days before suit was commenced thereon, and within one year from its accrual. Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874; section 10, Gen. Acts 1915, p. 290, approved Aug. 20, 1915.

Section 12 of General Acts 1915, p. 298, is 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, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides."

The defendant also demurs to this complaint because it seeks, in part, recovery for personal injuries and fails to allege that a sworn statement thereof as required by section 12 of said act of August 20, 1915, was filed with the clerk within 90 days after the receipt of the injury. Failing to allege in the complaint a performance of this condition precedent before filing suit is fatal on demurrer if the suit is for a personal injury. Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874.

Does the complaint aver and claim damages for personal injuries? It avers:

"Plaintiff's residence by said nuisance was rendered less 'pleasame' and habitable as a place of residence for plaintiff and his family, and plaintiff at his said residence and within the curtilage thereof, was compelled to inhale unpleasant, vile, offensive and unhealthy odors, gases and smoke from said garbage, trash or debris, and was made sick and greatly vexed, harassed and annoyed and suffered great mental pain and anguish, all to his damage, $5,000, wherefore he sues."

This court has said that-

"Any condition which creates annoyance and inconvenience to a man in his home is an offense against his person-a personal injury." Jefferson Fertilizer Co. v. Rich, 182 Ala. 633, 62 So. 40.

This complaint clearly avers and claims damages for personal injuries. Jefferson Fertilizer Co. v. Rich, 182 Ala 633, 62 So. 40. It fails to aver a compliance with section 12 of the act of 1915, p. 298, by alleging a sworn statement of the personal injury within...