City of Montgomery v. Weldon

• Decision Date: 09 February 1967
• Docket Number: 3 Div. 221
• Parties: CITY OF MONTGOMERY v. Loyal WELDON.
• Court: Alabama Supreme Court

Page 110

195 So.2d 110

280 Ala. 463

CITY OF MONTGOMERY v. Loyal WELDON.

3 Div. 221.

Supreme Court of Alabama.

Feb. 9, 1967.

Thos. F. Parker, Montgomery, for appellant.

Rushton, Stakely & Johnson, Jas. Garrett, Chas. A. Stakely, Jr., and N. T. Braswell, III, Montgomery, for appellee.

MERRILL, Justice.

This is an action for damages for personal injuries sustained by Loyal Weldon as a proximate result of the negligent maintenance by the City of Montgomery of a sidewalk. From a verdict and judgment of $7,500 returned by the jury, the city has perfected the instant appeal.

The facts are sustantially as follows: On June 5, 1963, the plaintiff, while walking on Molton Street in downtown Montgomery, tripped or stumbled upon a defective sidewalk. He suffered serious back injuries and was admitted to a local hospital for twenty-three days--the first of three lengthy hospital visits. On the same day the plaintiff was injured, his wife called an offical of the city and told him of the defective sidewalk and the accident. The city sent its repair crew to the place of the injury, barricaded the dangerous portion of the sidewalk and within two days had placed the sidewalk in repair.

Approximately two weeks after the fall, and before any other notice of the accident or claim of any kind was made to the city, an insurance adjuster, Mr. Harold McGlynn, Jr., entered the case on behalf of the defendant. In Mr. McGlynn's own words, 'I went by shortly after we got the assignment and just for a few minutes let him know that I was the adjuster on the case.'

This visit, the first of many, was the beginning of a warn acquaintanceship with the plaintiff and his wife, in which Mr. McGlynn displayed a friendly, sympathetic, and helpful attitude. A spirit of cooperation was created between the parties and a relationship of confidence was spawned.

A few days after the plaintiff was released from his initial hospitalization, Mr. McGlynn advised that written notice was required to perfect a claim against the city. Following these directions and in an obvious attempt to develop his claim, the plaintiff wrote to Mayor Earl James on July 18, 1963, presenting in detail the facts of his injury. On the following day, the plaintiff received a letter from Mr. Silas Cater, City Clerk, who was acting under the express instructions of Mayor James. A part of the last mentioned letter is as follows:

'* * * the matter is being handled by Mr. Harold McGlynn, Jr., adjuster. I am advised that you have not yet fully recovered from your injuries and for this reason Mr. McGlynn has not been able to negotiate a settlement with you.

'Both Mayor James and I deeply regret the accident and that you have been caused so much suffering.

'Mayor James has been called away from his office to-day and he has instructed me to write you this letter.'

This letter, written by the City Clerk at the behest of the Mayor of Montgomery expressed that Mr. McGlynn was 'handling' the claim on behalf of the city and was to negotiate a settlement for the plaintiff's injuries. It treats as conceded that the requirements of the plaintiff's claim had been met.

During the six-month period and longer following the accident, and after many visits, suggestions and directions, Mr. McGlynn assured the plaintiff and his wife that all was well; that they had done all necessary to perfect and complete the claim. He further assured them that there was no need to consult a lawyer, but not to let a year pass before reaching a settlement. A few days before the year was out, the city offered to settle for $2,500. This was refused by the plaintiff and he hired an attorney who filed suit the day before the one year statute of limitations would run.

The complaint so filed did not allege compliance with Tit. 37, § 504, Code 1940, which reads as follows:

'No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received and the day and time, and the place where the accident occurred, and the damages claimed.'

And by virtue of Tit. 37, § 476, Code 1940, there is a six months limitation in which claims of this nature may be presented to the city. Of course, it was now too late to comply with § 476.

The rule is quite well established that compliance with § 504 is a condition precedent to the bringing of an action against a municipal corporation and, as such, compliance with the section must be both alleged in the complaint and proven. City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970; Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825.

The plaintiff could not satisfy the requirements of § 504, even though he had sent a letter to city officials detailing the accident and his injuries, principally because he had not stated the amount of damages claimed and had not sworn to the statement. The city, by way of demurrer, raised the non-compliance. The plaintiff amended his complaint setting forth many of the facts already stated in this opinion, facts which we think clearly show an estoppel. To the complaint as amended, the defendant's demurrer was overruled. This ruling by the lower court, and its refusal to give the affirmative charge without hypothesis because of the failure to allege and prove compliance with § 504, are assigned as error by the defendant.

The sole issue may be stated as follows: whether a municipality may actively mislead a citizen who was injured on its streets by its negligence, by representing to him that his claim is sufficiently filed and perfected, and by urging him not to hire an...