City of Montgomery v. Weldon, 3 Div. 221

CourtSupreme Court of Alabama
Citation280 Ala. 463,195 So.2d 110
Docket Number3 Div. 221
Decision Date09 February 1967

Page 110

195 So.2d 110
280 Ala. 463

3 Div. 221.
Supreme Court of Alabama.
Feb. 9, 1967.

[280 Ala. 464] Thos. F. Parker, Montgomery, for appellant.

[280 Ala. 465] 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

Page 111

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.'

[280 Ala. 466] 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...

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46 cases
  • McCall v. Crosthwait, 2:07-CV-870-WKW.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • December 23, 2008
    ...of the notice-of-claim statute." Large v. City of Birmingham, 547 So.2d 457, 458 (Ala. 1989). See generally City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110, 112 (1967) (plaintiff could not satisfy the notice of claim requirement "even though he had sent a letter to city officials ......
  • Adtrav Corp. v. Duluth Travel, Inc., Case No. 2:14-cv-56-TMP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • September 6, 2016 defined as the voluntary surrender or relinquishment of some known right, benefit, or advantage. City of Montgomery v. Weldon, 280 Ala. 463,Page 40 195 So. 2d 110 (1967). However, it is well established that a party's intention to waive a right is to be ascertained from the external acts......
  • Coghill v. Badger, 2-379A51
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...Rabinowitz v. Town of Bay Harbor Islands (Fla.1965), 178 So.2d 9, 12-13 (emphasis supplied). See also City of Montgomery v. Weldon (1967), 280 Ala. 463, 195 So.2d 110; Anske v. Borough of Palisades Park (1976), 139 N.J.Super. 342, 354 A.2d 87; LaBriola v. Southeastern Pennsylvania Transport......
  • Jeter v. Montgomery County, Civil Action No. 2:06cv1043-MHT.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • March 19, 2007
    ...actual notice of the claim. The law does not support Jeter's estoppel argument. Jeter cites only one case, City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), in support of her estoppel theory. In Weldon, although the court held that the city was estopped from asserting the no......
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