Dixon v. City of Mobile, 1 Div. 357

CourtSupreme Court of Alabama
Writing for the CourtMERRILL; LIVINGSTON
Citation280 Ala. 419,194 So.2d 825
PartiesRobin Denise DIXON, pro aml v. CITY OF MOBILE.
Docket Number1 Div. 357
Decision Date26 January 1967

Page 825

194 So.2d 825
280 Ala. 419
Robin Denise DIXON, pro aml
v.
CITY OF MOBILE.
1 Div. 357.
Supreme Court of Alabama.
Jan. 26, 1967.

[280 Ala. 420] Cunningham, Bounds & Byrd, Mobile, for appellant.

Fred G. Collins, Mobile, for appellee.

MERRILL, Justice.

This was an action against the City of Mobile for damages brought by Robin Denise Dixon, a child five years old, suing by her father and next friend, for injuries allegedly suffered due to the negligent maintenance of a walkway in a public park within the corporate limits of the city. The court below sustained the defendant's demurrer

Page 826

to the complaint, and after taking a non-suit, the plaintiff has perfected the instant appeal.

The defendant's 18th ground of demurrer took the position that the complaint failed to 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[280 Ala. 421] 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.'

It is settled 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. In the case of City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970, this court said:

'It is also firmly established by the decisions of this court, as well as elsewhere, that the filing of the statement is not only mandatory but is a condition precedent to the bringing of an action against the municipal corporation for any cause to which they relate. In order to maintain such action, the filing of the claim in substantial compliance with the statute must be averred in the complaint and proved.'

See also Hamilton v. City of Anniston, 268 Ala. 559, 109 So.2d 728, 83 A.L.R.2d 1172.

The Weston case, supra, goes on to hold that the rule is not altered because the injured party is a minor or incompetent:

'However the act now before us contains no exemption in favor of minors or persons mentally or physically incapacitated to give the notice. It applies to all persons alike unless this court shall write into it such an exception, which, under the guise of judicial...

To continue reading

Request your trial
9 practice notes
  • Fomby v. City of Calera, Civ. A. No. CV 83-PT-1853-S.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • November 29, 1983
    ...for personal injury with the city clerk is a condition precedent to the filing of a personal injury suit. See Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825 (1967); Maise v. City of Gadsden, 232 Ala. 82, 166 So. 795 (1936); Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874 (1919)......
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...compliance with the statute must be alleged and proved. City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643; Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d Several decisions of this court have held that where an attempt is made to allege the actual particulars of a statement of claim,......
  • Jones v. City of Birmingham, 6 Div. 653
    • United States
    • Supreme Court of Alabama
    • June 26, 1969
    ...pleas by the City to set up the fact that the sidewalk was in the park. This identical question was argued in Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825, but that case was concluded without deciding the question. It is the sole question here A municipal corporation is liable for i......
  • Parton v. City of Huntsville
    • United States
    • Supreme Court of Alabama
    • September 29, 1978
    ...feel warranted in doing. To do so would be legislation not interpretation." Id. at 567, 172 So. at 646. See also Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825 Neither section 11-47-23 nor section 11-47-192 contains exemptions for minors. On the other hand, this Court has held that fi......
  • Request a trial to view additional results
9 cases
  • Fomby v. City of Calera, Civ. A. No. CV 83-PT-1853-S.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • November 29, 1983
    ...for personal injury with the city clerk is a condition precedent to the filing of a personal injury suit. See Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825 (1967); Maise v. City of Gadsden, 232 Ala. 82, 166 So. 795 (1936); Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874 (1919)......
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...compliance with the statute must be alleged and proved. City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643; Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d Several decisions of this court have held that where an attempt is made to allege the actual particulars of a statement of claim,......
  • Jones v. City of Birmingham, 6 Div. 653
    • United States
    • Supreme Court of Alabama
    • June 26, 1969
    ...pleas by the City to set up the fact that the sidewalk was in the park. This identical question was argued in Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825, but that case was concluded without deciding the question. It is the sole question here A municipal corporation is liable for i......
  • Parton v. City of Huntsville
    • United States
    • Supreme Court of Alabama
    • September 29, 1978
    ...feel warranted in doing. To do so would be legislation not interpretation." Id. at 567, 172 So. at 646. See also Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825 Neither section 11-47-23 nor section 11-47-192 contains exemptions for minors. On the other hand, this Court has held that fi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT