McKinnon v. City of Birmingham, 6 Div. 221

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, J.
Citation196 Ala. 56,71 So. 463
Docket Number6 Div. 221
Decision Date03 February 1916
PartiesMcKINNON v. CITY OF BIRMINGHAM et al.

71 So. 463

196 Ala. 56

McKINNON
v.
CITY OF BIRMINGHAM et al.

6 Div. 221

Supreme Court of Alabama

February 3, 1916


Rehearing Denied March 30, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by R.A. McKinnon against the City of Birmingham and others. Judgment for the defendants on demurrer to the complaint, and plaintiff appeals. Reversed and remanded. [71 So. 464.]

F.E. Blackburn, of Birmingham, for appellant.

M.M. Ullman and W.A. Jenkins, both of Birmingham, for appellees.

GARDNER, J.

Appellant brought suit against appellee for recovery of damages alleged to have been sustained by a fall on the sidewalk of the city of Birmingham, caused by stumbling over a stake across which wire was stretched. The complaint, as last amended, shows that on August 7, 1914, plaintiff made out in writing his claim against the said city for the damages therein set forth, and his claim was duly verified. It was set forth that the injury occurred on May 20, 1914, and the said claim was duly presented and filed with the clerk of said city. The demurrer to the complaint as last amended, which was sustained by the court below, takes the point that the complaint shows the claim filed by the plaintiff did not sufficiently allege the time when said accident occurred, and this is the only question presented for determination on this appeal.

Section 1275 of the Code provides for the filing of claims against a municipality in the following language:

"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 the 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."

Counsel for appellee insist that the claim is insufficient in merely giving the date and the year, without stating whether it was during the day or night that the accident occurred. In East Tenn., etc., R.R. Co. v. Carloss, 77 Ala. 443, this court, in speaking of the statute then in existence, which provided that in a suit against a railroad company for damages to live stock, or cattle of any kind, the complaint must state, among other things, the time when the killing or injury occurred, said:

"The purpose of the requirement is to infrom the railroad officials, with reasonable certainty,
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26 practice notes
  • City of Birmingham v. Cox, 6 Div. 554.
    • United States
    • Supreme Court of Alabama
    • February 28, 1935
    ...68 A. L. R. 1537, note; Perrine v. Southern Bitulithic Co. et al., 190 Ala. 96, 99, 66 So. 705; McKinnon v. City of Birmingham et al., 196 Ala. 56, 71 So. 463; Benton v. City of Montgomery et al., 200 Ala. 97, 100, 75 So. 473; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The sam......
  • Maise v. City of Gadsden, 7 Div. 353
    • United States
    • Supreme Court of Alabama
    • March 26, 1936
    ...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, 903, plaintiff sued for damages for raising the elevation of the street ......
  • Tolbert v. City of Birmingham, 6 Div. 427
    • United States
    • Supreme Court of Alabama
    • June 16, 1955
    ...Birmingham, 202 Ala. 490, 492, 80 So. 874; City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841; McKinnon v. City of Birmingham, 196 Ala. 56, 57, 58, 71 So. 463. The statute does not contemplate that the statement of claim shall be drawn with all the technical nicety of a In discuss......
  • McDougall v. City of Birmingham, 6 Div. 276.
    • United States
    • Supreme Court of Alabama
    • June 6, 1929
    ...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 constructio......
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26 cases
  • City of Birmingham v. Cox, 6 Div. 554.
    • United States
    • Supreme Court of Alabama
    • February 28, 1935
    ...68 A. L. R. 1537, note; Perrine v. Southern Bitulithic Co. et al., 190 Ala. 96, 99, 66 So. 705; McKinnon v. City of Birmingham et al., 196 Ala. 56, 71 So. 463; Benton v. City of Montgomery et al., 200 Ala. 97, 100, 75 So. 473; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The sam......
  • Maise v. City of Gadsden, 7 Div. 353
    • United States
    • Supreme Court of Alabama
    • March 26, 1936
    ...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, 903, plaintiff sued for damages for raising the elevation of the street ......
  • Tolbert v. City of Birmingham, 6 Div. 427
    • United States
    • Supreme Court of Alabama
    • June 16, 1955
    ...Birmingham, 202 Ala. 490, 492, 80 So. 874; City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841; McKinnon v. City of Birmingham, 196 Ala. 56, 57, 58, 71 So. 463. The statute does not contemplate that the statement of claim shall be drawn with all the technical nicety of a In discuss......
  • McDougall v. City of Birmingham, 6 Div. 276.
    • United States
    • Supreme Court of Alabama
    • June 6, 1929
    ...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 constructio......
  • Request a trial to view additional results

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