McDougall v. City of Birmingham, 6 Div. 276.

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, J.
Citation123 So. 83,219 Ala. 686
PartiesMCDOUGALL v. CITY OF BIRMINGHAM.
Decision Date06 June 1929
Docket Number6 Div. 276.

123 So. 83

219 Ala. 686

MCDOUGALL
v.
CITY OF BIRMINGHAM.

6 Div. 276.

Supreme Court of Alabama

June 6, 1929


Rehearing Denied June 27, 1929.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by Donald McDougall, a minor suing by his next friend, Ann McDougall, against the City of Birmingham. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Gardner, Bouldin, and Brown, JJ., dissenting.

Clark Williams, Dent Williams and N. S. Morgan, all of Birmingham, for appellant.

Wilkinson & Burton and Frank A. Wilkinson, all of Birmingham, for appellee.

FOSTER, J.

This is an action by an infant of tender years, to wit, four years, suing by its mother as next friend for an alleged injury due to an alleged negligent defect in the streets of the city. The court sustained demurrers to the complaint, appellant declined to plead further, and judgment was awarded defendant.

Appellant contends that the judgment was erroneous as to counts 2 and 3, but does [123 So. 84] not contend for error as to count 1. From the argument of counsel it appears that the only defect in counts 2 and 3 claimed is that the statement filed with the city (as required by section 12 of the Acts of 1915, on page 298, somewhat different from section 2031, Code), and set out in said counts, is insufficient, in that it was signed by the mother of the injured party, and does not purport to be on behalf of the infant (though said counts allege that plaintiff filed it), but it states that she as such mother makes claim for the damage of $10,000, and further gives the street and number of her residence, but not expressly that of the infant.

The sole question therefore here presented is whether such a statement is sufficient to justify a suit by the infant suing by his mother as next friend, when the statement signed by the mother does not expressly state that it is on behalf of the infant. The law requires that it shall be filed "by the injured party," and shall state the "damages claimed," and "the street and house number where the injured party resides."

This court has held that this statute was intended to advise the city of the accident for the purpose of investigation and adjustment without suit (Bessemer v. Barnett, 212 Ala. 202, 102 So. 23), and that though filing the statement is a prerequisite to suit, a substantial compliance, sufficient to accomplish its purpose, is all that is necessary, and that without technical accuracy (Bessemer v. Barnett, supra; McKinnon v. Birmingham, 196 Ala. 56, 71 So. 463; Grambs v. Birmingham, 202 Ala. 490, 80 So. 813).

In our case of Birmingham v. Chestnut, 161 Ala. 253, 49 So. 813, a construction given a statute of somewhat similar import is that if the injury be done to the wife's property the notice must be given to her to sustain a suit by her, and if it was given by the husband, it is not a sufficient compliance to justify her suit. This was for damage to property owned by the wife, in which the husband had no interest.

The statement of a claim for injuries to a minor made by a next friend on behalf of the minor has been held to be a sufficient compliance with a similar statute. Huntsville v. Phillips, 191 Ala. 524, 67 So. 664.

In a New York case, Seliger v. New York (Sup.) 88 N.Y.S. 1003, a claim was filed under a similar statute on behalf of an infant, followed by suits by the infant and his parent separately. The court held the notice sufficient for the suit by the infant, but not for that of the parent.

On the other hand, in Minnesota, Ackeret v. Minneapolis, 129 Minn. 190, 151 N.W. 976, L. R. A. 1915D, 1111, Ann. Cas. 1916E, 897, a statement was filed with the city making claim for an injury to an infant, stating all details, including the amount of the claim, but did not state whether the claim was made for the infant or parent; in a suit by the infant, the claim was held sufficient, with comments which we think are appropriate to our statute, and should control on this appeal as well as in that case:

"That the accident gave rise to two claims for damages-one in favor of the father and one in favor of the child-and that the notice states only one claim, and does not specify whether that is the claim of the child or of the father; and further contends that in...

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12 practice notes
  • City of Birmingham v. Cox, 6 Div. 554.
    • United States
    • Supreme Court of Alabama
    • 28 Febrero 1935
    ...number where the party injured resides." City of Birmingham v. Scott, 217 Ala. 615, 117 So. 65; McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A. L. R. 1076; City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353. The refusal of instruction precluding the jury from ret......
  • Maise v. City of Gadsden, 7 Div. 353
    • United States
    • Supreme Court of Alabama
    • 26 Marzo 1936
    ...212 Ala. 202, 102 So. 23; City of Birmingham v. Simmons, 222 Ala. 111, 130 So. 896, 74 A.L.R. 766; McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A.L.R. 1076; McKinnon v. City of Birmingham, 196 Ala. 56, 71 So. 463. In Newman v. City of Birmingham, 109 Ala. 630, 19 So. 902, 9......
  • Parton v. City of Huntsville
    • United States
    • Supreme Court of Alabama
    • 29 Septiembre 1978
    ...filing of the required statement by a parent on behalf of the injured minor was sufficient compliance. McDougal v. City of Birmingham, 219 Ala. 686, 123 So. 83 (1929), City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664 (1914). Here, the parent's attempted compliance came several month......
  • City of Birmingham v. Smith, 6 Div. 651
    • United States
    • Supreme Court of Alabama
    • 17 Octubre 1935
    ...accuracy of proof of such averment is not necessary, if indeed proof of this averment is required. McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A.L.R. 1076. In any event, such omission in proof did not go to the "substantial right of recovery," and is within Circu......
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12 cases
  • City of Birmingham v. Cox, 6 Div. 554.
    • United States
    • Supreme Court of Alabama
    • 28 Febrero 1935
    ...number where the party injured resides." City of Birmingham v. Scott, 217 Ala. 615, 117 So. 65; McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A. L. R. 1076; City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353. The refusal of instruction precluding the jury from ret......
  • Maise v. City of Gadsden, 7 Div. 353
    • United States
    • Supreme Court of Alabama
    • 26 Marzo 1936
    ...212 Ala. 202, 102 So. 23; City of Birmingham v. Simmons, 222 Ala. 111, 130 So. 896, 74 A.L.R. 766; McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A.L.R. 1076; McKinnon v. City of Birmingham, 196 Ala. 56, 71 So. 463. In Newman v. City of Birmingham, 109 Ala. 630, 19 So. 902, 9......
  • Parton v. City of Huntsville
    • United States
    • Supreme Court of Alabama
    • 29 Septiembre 1978
    ...filing of the required statement by a parent on behalf of the injured minor was sufficient compliance. McDougal v. City of Birmingham, 219 Ala. 686, 123 So. 83 (1929), City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664 (1914). Here, the parent's attempted compliance came several month......
  • City of Birmingham v. Smith, 6 Div. 651
    • United States
    • Supreme Court of Alabama
    • 17 Octubre 1935
    ...accuracy of proof of such averment is not necessary, if indeed proof of this averment is required. McDougall v. City of Birmingham, 219 Ala. 686, 123 So. 83, 63 A.L.R. 1076. In any event, such omission in proof did not go to the "substantial right of recovery," and is within Circu......
  • Request a trial to view additional results

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