McKinnon v. City of Birmingham

• Citation: 196 Ala. 56,71 So. 463
• Decision Date: 03 February 1916
• Docket Number: 6 Div. 221
• Parties: McKINNON v. CITY OF BIRMINGHAM et al.
• Court: Supreme Court of Alabama

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.

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, as to the circumstances attending the alleged injury, so that they may act advisedly in the investigation of the case, either with the view of voluntary adjustment, or of defense at law. The time, we think, should be stated to be a specified day of a given month and year."

It will thus be seen that this court held the view that it was a sufficient designation of the time to give the day of the month and year. In speaking of the statute under consideration in the instant case it was said in Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63:

"Statutes similar to this one have been previously construed by this court, wherein it was held that they were designed for the purpose of giving the city authorities an opportunity to investigate and adjust claims made against the city, without the expense of litigation, and that a compliance therewith on the part of the plaintiff was a condition precedent to the maintenance of a

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