Hamilton v. City of Anniston

• Decision Date: 19 February 1959
• Docket Number: 7 Div. 373
• Citation: 109 So.2d 728,83 A.L.R.2d 1172,268 Ala. 559
• Parties: , 83 A.L.R.2d 1172 Mildred Clyde HAMILTON v. CITY OF ANNISTON.
• Court: Alabama Supreme Court

Page 728

109 So.2d 728

268 Ala. 559, 83 A.L.R.2d 1172

Mildred Clyde HAMILTON v. CITY OF ANNISTON.

7 Div. 373.

Supreme Court of Alabama.

Feb. 19, 1959.

R. A. Norred, Anniston, for appellant.

Emerson & Watson, Anniston, for appellee.

COLEMAN, Justice.

Appellant, hereinafter referred to as plaintiff, sued appellee, hereinafter referred to as the city, to recover for personal injury sustained by plaintiff as the proximate consequence of alleged negligence of the city in maintaining a public sidewalk near Anniston Memorial Hospital in a defective and dangerous condition. The complaint as amended contained three counts. Demurrer to each count was sustained, and plaintiff suffered a nonsuit and appealed. Errors assigned are the rulings sustaining demurrer to the complaint and to the counts thereof severally.

This appeal concerns construction of the following sections of Title 37, Code 1940:

' § 476. All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.'

' § 504. 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.'

Each count alleges that the injury was received on, 'to-wit, the 9th day of August, 1955.'

Count One alleges that a sworn statement of plaintiff's claim was presented to the city clerk on, 'to-wit, the 16th day of June, 1956.' A copy of the statement so presented is attached to the complaint and is incorporated in each count by reference.

Count Two further alleges that during the month of September, 1955, and within six months after the injury, plaintiff's husband, acting as her agent, '* * * did present said claim orally * * *' to the Chairman of the City Commission.

Count Three further alleges that during the month of September, 1955, plaintiff's husband, as her agent, did present said claim orally to the Chairman of the City Commission, who in his capacity as such chairman with authority to supervise the streets of the city and to supervise generally the government of the city, did waive formal presentation within six months and did state in substance as follows: "Please wait and present this claim when the new administrator is appointed for Anniston Memorial Hospital," and that the new administrator was not appointed until more than six months after August 9, 1955.

The demurrer to the complaint as last amended asserts three reasons why the complaint does not show a right to recover, to wit:

(1) It fails to allege presentation of plaintiff's sworn claim within six months. (Grounds 2, 3, 5)

(2) It affirmatively shows on its face that plaintiff's sworn claim was not filed within six months. (Ground 4)

(3) It fails to allege facts showing a waiver by city of the filing of a sworn claim. (Grounds 6, 7, 8, 9)

The complaint clearly alleges that on a day prior to the day when suit was filed, a sworn statement was presented by plaintiff to the City Clerk. The only defect in the statement urged by the city is failure to file it within six months 'from the accrual' of the claim. No other defect is pointed out or argued.

The defense thus sought to be interposed by the city is plaintiff's failure to comply with § 476, Title 37, Code 1940.

To support its position, the city relies on Howell v. City of Dothan, 234 Ala. 158, 174 So. 624, where it was said:

'The items for personal damages for inhaling unhealthy odors, affecting the right use of the home and health therein, are recoverable if claimed or presented within the requirements for presentation or suit. Code, §§ 1907, 2031. The effect of our cases is that any condition which creates an actionable annoyance and inconvenience to one in his home or business is an offense against his person and is a personal injury. City of Birmingham v. Estes, 229 Ala. 671, 159 So. 201, 97 A.L.R. 114. Not having claimed and presented such element of damages to the municipality, as required by the statute, and suit not having been brought within six months of the accrual thereof, no recovery may be had in this suit for such personal injury or personal property damages. * * *.' 234 Ala. 158, 161, 174 So. 624, 627.

Howell v. City of Dothan, supra, was a suit in equity, and the decree there appealed from was entered after submission on testimony. The holding was that in absence of compliance with the statute, '* * * and suit not having been brought within six months * * * no recovery may be had * * *'. (Emphasis supplied.) It does not appear that any question as to sufficiency of pleading was there involved. The instant case is an action at law and this appeal seeks to review a ruling on demurrer.

Section 476, Title 37, Code 1940, appears to have been brought forward through the successive codes without change in even the slightest particular from the act approved August 13, 1907. Act No. 797, General Acts 1907, page 790, § 49, at page 818; Code 1907, § 1191; Code 1923, § 1907.

Section 504, Title 37, Code 1940, also appears to have been brought forward without change, except punctuation, from the act approved August 13, 1907. Act No. 797, General Acts 1907, page 790, § 95, at page 838. Plaintiff states in brief that the complaint must allege compliance with § 504, and there is no controversy on this point.

The question in the instant case is on pleading, and may be stated as follows: Is compliance with § 476, Title 37, a condition precedent to bringing suit against a city for personal injury; or, stated another way, is a complaint against city for personal injury required by § 476, Title 37, to aver compliance with that code section? We hold that the question stated either way must be answered in the negative.

In City of Birmingham v. Darden, 1 Ala.App. 479, 482, 55 So. 1014, 1015, decided in 1911, the Court of Appeals said:

'As to the demurrer to the complaint, on the ground that it does not allege that the claim was presented within six months, this is a matter that should be presented by plea, and the record shows that it was presented by plea, and some of the charges asked by the defendant show that there was a presentation, which was held by the court to be legal, and there is no bill of exceptions. This is analogous to the defense of the failure to present a claim to an administrator, which, in a court of law, must be specially pleaded. Adm'r of Mardis v. Smith, 2 Ala. 382; Smith & Crawford, Ex'rs v. Huie, Adm'r, 14 Ala. 201, 206. There was no error in overruling this demurrer.'

We have examined the original record in the Darden case, supra. The complaint consisted of one count which claimed damages for a nuisance maintained by defendant city, '* * * which nuisance consisted in carcasses of dead animals and other filth and garbage gathered or put in a pit * * * and would cause foul odors, obnoxious vapors and flies or other insects to come or be on plaintiff's said place of residence to such an extent that, as a proximate consequence thereof, plaintiff's said residence became less desirable as a place of residence, and plaintiff and his said family were subjected to great and frequent annoyance and discomfort by being compelled at said place of residence to inhale or smell said foul odors * * * and he and his said family were made sick, and plaintiff suffered great mental and physical pain and anguish * * *.'

Defendant in that case demurred to the complaint on the ground, among others, '2nd. It is not averred in said complaint that the claim for damages sustained by the plaintiff was presented to defendant within six months of the accrual of the same.'

The trial court overruled the demurrer to the complaint, and the second assignment of error recites as follows:

'The Court erred in overruling appellant's demurrer to the Complaint.'

The Darden case clearly holds that the defense of failure to present the claim within six months was not properly presented by demurrer.

There is no ground of demurrer in that case taking the point that a sworn claim was not filed as required by § 504, Title 37. The complaint does not aver that a sworn complaint was filed and there is no bill of exceptions. There is in the record, however, a plea (4) that the claim was not presented within six months, and another plea (6) that defendant '* * * was not allowed a reasonable length of time in which to act on plaintiff's claim * * * after presentation of said claim * * *.' Compliance with what is now § 504, Title 37, does not appear to have been an issue on appeal in the Darden case.

In 1912, this court, in Anderson v. City of Birmingham, 177 Ala. 302, 58 So. 256, said: 'Section 1191 of the Code of 1907 (§ 476, Title 37, Code 1940), * * * is a statute of nonclaims * * *' and '* * * is analogous to the statute requiring the presentation of claims to an administrator * * *. In such cases, presentation is not a prerequisite to the bringing of a suit; and, if a suit be commenced within the prescribed period, it is a sufficient presentation * * *. In the present case, the suit was begun within six months * * *.' (Par. Supplied.) The holding was that a plea of non-compliance with § 476, Title 37, was subject to demurrer when suit was filed within the statutory period.

In 1915, the Court of Appeals cited the Darden and Anderson cases, supra, as authority for the following statements:

'* * * the section (§ 1191, Code 1907) (§ 476, Title 37, Code 1940) is similar to the statute of nonclaim applicable to administrators, and that a failure to file the claim is defensive matter properly...