City of New Decatur v. Chappell

• Decision Date: 21 November 1911
• Citation: 2 Ala.App. 564,56 So. 764
• Parties: CITY OF NEW DECATUR v. CHAPPELL.
• Court: Alabama Court of Appeals

56 So. 764

2 Ala.App. 564

CITY OF NEW DECATUR v. CHAPPELL.

Court of Appeals of Alabama

November 21, 1911

Rehearing Denied Dec. 14, 1911.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by A. J. Chappell against the City of New Decatur. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Tidwell & Sample, for appellant.

E. W Godbey, for appellee.

PELHAM, J.

This suit was instituted in the trial court against the appellant a municipal corporation, by the appellee to recover damages for personal injuries alleged to have been suffered by appellee falling into a defective plank walkway or bridge constructed along one of the public highways in the city of New Decatur.

No sworn statement, as required by section 1275 of the Code of 1907, was filed by appellee with the clerk of the appellant municipal corporation, but the following matters were set up in the amended complaint and averred as a waiver of the notice, and were also shown by the evidence on the trial without conflict:

Appellee wrote and sent to the city council of New Decatur the following letter: "New Decatur, Ala., March 1st, 1909. The Council of New Decatur: I have a claim against the city of New Decatur. On Jan. 17th, 1909, I got hurt on the bridge on sidewalks over ditch between 8th and 9th street, 6th Ave I am in bad condition have not been able to preach since, and do not know when I will be able. That has been very expensive to me, and I may never be myself again. Now I look on you all as Christian gentlemen, and think you will do the right thing. I am ready to meet a proposition from you. If you will agree with me now, we will have no other expense, to go into law will cost all of us; so let's settle it without that. Let me hear from you at once. Yours very truly, [[Signed] A J. Chappell."

This letter was received by the authorities of the city of New Decatur, and the minutes of the governing board of the municipality show the following proceedings had with reference to it: "The clerk read a communication from the Rev. A. J. Chappell, in which he called attention to certain injuries received by him, caused by his falling on or through a defective bridge on Sixth avenue, between Eighth and Ninth streets, in South Decatur, and for which he asked some sort of settlement at the hands of the council."

The date of the above minute entry is not shown, but, on March 9, 1909, appears the following minute entry: "Mayor Blackwell called attention of the city council to the communication before the council at its last meeting from Rev. A. J. Chappell, concerning his claim against the city for damages for personal injuries received by him in his falling from an alleged defective bridge on Sixth avenue, in the Second ward, and suggested the advisability of a reference of the matter to a committee of this council with authority to consult the Rev. Mr. Chappell, in an effort to discover what merit, if any there be, the claim referred to may contain, and to report, with its recommendations, back to the next meeting of this council. Alderman John Patterson moved that the matter referred to above be placed in the hands of the street committee and the mayor, with instructions to consult the Rev. Mr. Chappell, as agents of the city of New Decatur, and report the result of this consultation back to the council at its next meeting. This motion was seconded by Alderman Hartung, and prevailed unanimously."

After this entry, but also without date, so far as shown by the evidence in the bill of exceptions, but set out in the complaint as of the date of April 13, 1909, appears this subsequent entry on the minutes: "Rev. A. J. Chappell, who claims to have received a fall from a footbridge on Sixth Ave., in the Second ward, from which he received painful injuries, and probably permanent injuries, and who had brought his claim for some consideration at the hands of the council to the attention of the council on March 1st, in the form of a written communication, was before the council by invitation of the mayor, and made some statements concerning the manner in which his alleged injuries were received. Alderman Patterson moved that the street committee, to which the above claim was referred for investigation at the meeting of this council, held on March 9th last, be requested to meet at the earliest date practicable for the purpose of acting on the claim of the Rev. Mr. Chappell, and preparing its recommendations to be submitted thereon to the next meeting of this council. This motion was properly seconded, and prevailed unanimously."

Also the following entries of proceeding of the council, in relation to the appellee's claim, are alleged and appear on the minute book as introduced in evidence: "May 8, 1909. With regard to the complaint of the Rev. Mr. Chappell against the city for damages on account of his having fallen from a footbridge in South Decatur, the mayor reported that the street committee had been unable to get a conference with Mr. Chappell at the time and place agreed on."

And without date, so far as shown by the evidence set out in the bill of exceptions, this entry (stated in the complaint to be dated June 8, 1909) also appears in the proceedings: "Alderman Crow mentioned the matter of the alleged injury of Rev. Mr. Chappell on Sixth Ave. board walk. The city attorney gave opinion that there was nothing for the council to do, as Mr. Chappell had not appeared before them."

It was further shown by the evidence that, due to some misunderstanding as to the place of meeting, the committee of the city council to which the matter was referred failed to meet the appellee, and no further action was taken by the committee, the council, or the appellee until June 14, 1909, when appellee brought this suit for damages against appellant, based upon the alleged injuries received January 17, 1909.

Section 1275 of the Code of 1907 provides: "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." This statute is enacted in furtherance of a public policy, and its object and purpose is to protect the municipality from the expense of needless litigation, give it an opportunity for investigation, and allow it to adjust differences and settle claims without suit. Barrett v. Mobile, 129 Ala 179, 30 So. 36, 87 Am. St. Rep. 54; Newman v. Birmingham, 109 Ala. 630, 19 So. 902; Bland v. Mobile, 142 Ala. 142, 37 So. 843. The statute (section 1275) makes filing the claim a prerequisite to recovery in any suit for personal injuries, and virtually the right to sue without first filing the claim in the manner provided is taken away by the statute. Barrett v. City of Mobile, supra. See, also, the authorities collated in footnote 2, p. 2815, 4 Dillon's Municipal Corporations (5th Ed.). It is the contention of the appellee, however, that the notice prescribed by the statute may be waived, and that the facts as set up in the complaint and shown by the...