Cole v. City of Birmingham

Decision Date22 December 1942
Docket Number6 Div. 89.
Citation243 Ala. 561,11 So.2d 148
PartiesCOLE v. CITY OF BIRMINGHAM.
CourtAlabama Supreme Court

M.B. Grace, of Birmingham, for appellant.

Wm L. Clark, of Birmingham, for appellee.

LAWSON Justice.

Appellant brought suit against appellee for recovery of damages for personal injuries alleged to have been occasioned by a defective street.

The court below sustained defendant's demurrer to plaintiff's amended complaint, and the plaintiff, on account of this adverse ruling of the court, suffered a nonsuit, with an appeal on the record, as is provided by Section 819, Title 7, Code of 1940. Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42; Herrmann v. Mobile County, 202 Ala. 274, 80 So. 112.

The original complaint alleged that the plaintiff was injured on May 9, 1941. It was amended so as to incorporate the sworn notice or statement which the record discloses was filed by the plaintiff with the clerk of the City of Birmingham on July 10, 1941. That part of the notice or claim which is here pertinent is as follows: "Stella Cole on April 11, 1941 resided at 1051 Britten Street, Birmingham, Alabama. On the night of April 11, 1941, at about 7:30 P.M., Stella Cole fell into a manhole near the intersection of 6th Avenue and 16th Street, South, Birmingham, Alabama, which manhole was between the sidewalk and the edge of the street and near the corner of 6th Avenue and 16th Street, South, Birmingham, Alabama, on the west side of 16th Street, which manhole was constructed and maintained by the City of Birmingham, the top or covering of the manhole being uneven, did not fit the hole and was in a dangerous condition. A Negro church is situated on the corner of 6th Avenue and 16th Street, South, Birmingham Alabama, and on the night of May 9, 1941, Stella Cole got out of an automobile on the 16th Street side, going to church stepped on the top of the covering to the manhole, and as she did, the top or covering, turned to one side, and her body fell into the manhole, the following injuries being sustained, * * *." (Emphasis supplied.)

The demurrer to the complaint as last amended, which was sustained by the court below, takes the point that the complaint shows that the statement filed by the plaintiff did not sufficiently allege the time when said injury occurred, and this is the only question presented for determination on this appeal.

Section 659, Title 62, Code of 1940 (General Acts, 1915, p. 298, Section 12), requires that a statement setting out certain information be filed with the city clerk before a suit may be brought against the City of Birmingham on a claim for personal injury or from neglect or wrongful injury to personal property. Said section is as follows: "No suit shall be brought or maintained nor shall any recovery be had against the 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."

Counsel for appellee strenuously insist that the statement is insufficient in that it alleges that the injury occurred on two separate days, namely, the 11th day of April, 1941, and the 9th day of May, 1941, and that, therefore, the City of Birmingham was not notified of the day and time when the alleged accident occurred, as is required by Section 659, Title 62, Code of 1940.

Our cases construing the above section and a very similar statute which is applicable to cities and towns generally (Section 504, Title 37, Code of 1940) have uniformly held that a substantial compliance therewith is sufficient and that technical accuracy is not required. It has been said that the purpose of the statute requiring the notice was to give the board an opportunity to investigate and adjust claims preferred against the city without the expense of litigation. Newman v. Mayor and Aldermen of Birmingham, 109 Ala 630, 19 So. 902; Maise v. City of Gadsden, 232 Ala. 82, 166 So. 795; ...

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8 cases
  • Tolbert v. City of Birmingham, 6 Div. 427
    • United States
    • Supreme Court of Alabama
    • June 16, 1955
    ...City. But we have also held that substantial compliance will suffice; and that technical accuracy is not required. Cole v. City of Birmingham, 243 Ala. 561, 563, 11 So.2d 148; City of Birmingham v. Hornsby, 242 Ala. 403, 405, 6 So.2d 884; Downs v. City of Birmingham, 240 Ala. 177, 185, 198 ......
  • City of Anniston v. Rosser, 7 Div. 546
    • United States
    • Supreme Court of Alabama
    • August 1, 1963
    ...243 Ala. 124, 9 So.2d 299; and to adjust claims without the expense of litigation if the circumstances warrant. Cole v. City of Birmingham, 243 Ala. 561, 11 So.2d 148; Ray v. City of Birmingham, Ala., 154 So.2d 751; Tolbert v. City of Birmingham, 262 Ala. 674, 81 So.2d 336, 63 A.L.R.2d It i......
  • Sisson v. Leonard
    • United States
    • Supreme Court of Alabama
    • December 22, 1942
    ...11 So.2d 144 243 Ala. 546 SISSON v. LEONARD. 6 Div. 33.Supreme Court of AlabamaDecember 22, 1942 [11 ... [243. Ala. 547] L.C. Albright, of Birmingham, for appellant. . . [243. Ala. 548] ... King, 120 Ala. 459, 24 So. 929; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Wynn v. McCraney, 156 Ala. 630, ......
  • Jacks v. City of Birmingham, 6 Div. 209
    • United States
    • Supreme Court of Alabama
    • June 5, 1958
    ...trial court did not err to a reversal in giving Charge A at the request of the defendant. § 659, Title 62, Code 1940; Cole v. City of Birmingham, 243 Ala. 561, 11 So.2d 148; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874. If the plaintiff thought the charge misleading because it did......
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