City of Birmingham v. Williams

• Decision Date: 08 March 1934
• Docket Number: 6 Div. 530.
• Citation: 228 Ala. 456,153 So. 639
• Parties: CITY OF BIRMINGHAM v. WILLIAMS.
• Court: Alabama Supreme Court

153 So. 639

228 Ala. 456

CITY OF BIRMINGHAM v. WILLIAMS.

6 Div. 530.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for damages for personal injuries by Virginia Adell Williams against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326.

Reversed and remanded.

W. J Wynn and T. A. McFarland, both of Birmingham, for appellant.

Brown &amp Brown and Harsh, Harsh & Hare, all of Birmingham, for appellee.

ANDERSON Chief Justice.

True the complaint should have set forth a compliance with the statute as to the filing of the claim, averring the time, place of the injury, etc., and the omission of either of the requirements would render the complaint subject to an appropriate ground of demurrer. We find no ground of demurrer to the complaint for a failure to aver that the claim filed did not give the time of the injury. As we understand, these requirements relate to the remedy rather than the right and the failure of the complaint to set out each and every one of the essentials of the notice required to be filed does not prevent the complaint from being sufficient to support a judgment; that is, from stating a cause of action. City of Birmingham v. Scott, 217 Ala. 615, 117 So. 65.

It appears that, before count A was interposed, the complaint was amended by striking all defendants except the city of Birmingham, and the error of using the plural in said count A was self-correcting, as there was but one defendant in the case when count A was interposed.

In our case of Mobile Light & R. Co. v. Therrell, 205 Ala 553, 88 So. 677, 679, cited and relied on in brief of counsel for the appellee, in dealing with the right to recover special damages, not specifically set out in the complaint, it was said: "This rule does not require that the complaint shall describe in detail all the characteristics and consequences of the injuries or wounds sustained, and extreme particularity is not required. * * * Hence, we have been quite liberal in permitting a recovery for special injuries in cases where the complaint contained an averment of general injury comprehensive enough to include, by fair intendment, the particular injury proven but not specifically charged." The opinion proceeded further, however, and approved the New York Case (Kleiner...