Hunnicutt v. City of Tuscaloosa

• Court: Alabama Supreme Court
• Writing for the Court: HEFLIN
• Citation: Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (Ala. 1976)
• Decision Date: 17 September 1976
• Parties: Linda Ophelia HUNNICUTT, as Administratrix, etc. v. CITY OF TUSCALOOSA et al. SC 1471.

Page 346

337 So.2d 346

Linda Ophelia HUNNICUTT, as Administratrix, etc. v. CITY OF TUSCALOOSA et al.

SC 1471.

Supreme Court of Alabama.

Sept. 17, 1976.

Thompson & Stilson and Olin Zeanah, Tuscaloosa, for appellant.

J. Wagner Finnell and Glenn N. Baxter, Tuscaloosa, for appellees.

HEFLIN, Chief Justice. ¹

This appeal is brought by Linda Ophelia Hunnicutt, as administratrix of the estate of Doris Louise Burkhalter, from the granting of summary judgment for the City of Tuscaloosa in an action for the wrongful death of Doris Louise Burkhalter.

The defendant city's motion for summary judgment contained the following grounds: 1) The plaintiff failed to file a claim against the city within six months of the accrual of the cause of action as required by Section 476, Title 37, Alabama Code of 1940 (Recompiled 1958) and 2) The plaintiff failed to file a claim against the city stating substantially the manner in which injury was received and the day and time when the accident occurred as required by Section 504, Title 37, Alabama Code of 1940 (Recompiled 1958).

The trial court granted the defendant city's motion without stating the reason or reasons. Plaintiff alleges error by the trial court in granting the motion on either of these two grounds and alternative attacks the constitutionality of sections 476 and 504 of Title 37 of the Alabama Code on equal protection grounds.

On June 23, 1974 the decomposed body of Doris Louise Burkhalter was found inside an automobile in the waters of Lake Tuscaloosa by a diver at a point near Watermelon Road Landing within the city limits of the City of Tuscaloosa. The body of Curtis Cleveland Espey was also found in the automobile. The complaint filed by the plaintiff alleged that Doris Burkhalter died while a passenger in a car driven by Curtis Espey and that her death was a result of the negligence of the City of Tuscaloosa in failing to maintain suitable barriers to warn motorists that the end of Old Watermelon Road goes into Lake Tuscaloosa. It was further alleged that the failure to post warning signs amounted to a defect in the public street. The complaint also alleged that the exact date and time when the automobile went into the lake were not known but that Doris Burkhalter and Curtis Espey were last seen alive on October 2, 1973.

The post-mortem examination of the toxicologist who examined the bodies on June 23, 1974 stated that the death of Doris Burkhalter had occurred as the result of drowning. An affidavit made by the same toxicologist stated that death had occurred at some time between six and nine months before the discovery of the bodies and that his examination results would be consistent with an estimation of death having occurred in October 1973.

The complaint named the Administrator of the estate of Curtis Espey as a co-defendant, however, this appeal is limited to the summary judgment granted to the City of Tuscaloosa.

The plaintiff, daughter of Doris Burkhalter, was appointed Administratrix of the Estate of Doris Burkhalter on August 16, 1974. Plaintiff filed a claim with the City of Tuscaloosa on December 9, 1974 and filed the complaint from which this action arose on December 20, 1974. The following is the pertinent text of the claim which was filed with the defendant city:

'My name is Linda Ophelia Hunnicutt, Administratrix for the Estate of Doris Louise Burkhalter, Deceased, and a copy of my letters of administration is attached hereto as Exhibit A. The body of my mother, Doris Louise Burkhalter, Deceased, was discovered in the City of Tuscaloosa, Tuscaloosa County, Alabama, to-wit, off the Watermelon Road Landing in southwest Lake Tuscaloosa on or about the afternoon of June 23, 1974. My mother died while a passenger in a vehicle driven by Mr. Curtis Cleveland Espey. Mr. Espey drove said vehicle off the end of Old Watermelon Road at, to-wit, the Watermelon Road Landing on Lake Tuscaloosa, said vehicle going into Lake Tuscaloosa. This vehicle went into Lake Tuscaloosa as a result of the City of Tuscaloosa failing to properly maintain suitable barriers. The exact date and time that this vehicle went into Lake Tuscaloosa is not known but it is believed to be on or before June 23, 1974, said date being the date my mother's body was discovered and was the first evidence I had that my mother had died. See the attached Exhibit B concerning the discovery of my mother's body in Lake Tuscaloosa off the end of Watermelon Road.' (Exhibit B was a clipping from the Tuscaloosa News of June 24, 1974 which contained a picture and an account of the recovery of the automobile from the lake.)

The resolution of this appeal will be bottomed on answering the question of whether the plaintiff sufficiently complied with the requirements of §§ 476, 504, Title 37, Alabama Code of 1940 (Recompiled 1958) in providing the city with notice of her claim in order to allow her to maintain the suit. These sections provide as follows:

§ 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.' (Emphasis added.)

This court will first address the question of whether the claim filed by the plaintiff complied with the requirements found in section 476, that it be filed 'within six months from the accrual thereof.' The defendant city argues that the claim accrued on the day of the death of Doris Burkhalter, which according to the toxicologist's affidavit was probably in October 1973 and thus section 476 barred the claim because it was filed some 14 months later, in December 1974. The plaintiff on the other hand contends that the claim did not accrue until there was someone capable of bringing the action, in this case not until she was appointed administratrix of the estate of her mother.

In construing the provisions of sections 476 and 504 of Title 37 this court has stated that they should be considered in pari materia. Howell v. Dothan, 234 Ala. 158, 174 So. 624 (1937).

This action was brought under the Alabama Wrongful Death Act, Title 7, § 123,...