Perrine v. Southern Bitulithic Co., 721

• Court: Supreme Court of Alabama
• Writing for the Court: MAYFIELD, J.
• Citation: 190 Ala. 96,66 So. 705
• Parties: PERRINE v. SOUTHERN BITULITHIC CO. et al.
• Decision Date: 07 November 1914
• Docket Number: 721

66 So. 705

190 Ala. 96

PERRINE
v.
SOUTHERN BITULITHIC CO. et al.

No. 721

Supreme Court of Alabama

November 7, 1914

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

Action by H.C. Perrine against the Southern Bitulithic Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded. [66 So. 706]

W.A. Denson, of Birmingham, for appellant.

M.M. Ullman, of Birmingham, for appellees.

MAYFIELD, J.

Appellant sued appellees to recover damages for loss of the services of his wife and for the costs and expenses incurred in treating and caring for her, which damages are alleged to have been proximately caused by the negligence of the appellees in causing or allowing a hole in the streets or sidewalks in the city of Birmingham, into which hole plaintiff's wife fell, sustaining personal injuries resulting in plaintiff's loss and damages complained of. At the close of the plaintiff's testimony the trial court, at the request of the city of Birmingham, gave the affirmative charge in favor of the city, and the defense proceeded thereafter as to the other defendant alone; the trial resulting in a judgment for both defendants. From that judgment, plaintiff prosecutes this appeal.

We are of the opinion that the trial court erred in giving the affirmative charge for the city. The court evidently proceeded upon the theory that there was no sufficient presentation of the claim on which the action was brought, as required by Municipal Code, §§ 1191, 1275. The authorities relied on by appellee (Newman v. Birmingham, 109 Ala. 630, 19 So. 902, and Bland v. Mobile, 142 Ala. 144, 37 So. 843) to support the ruling of the trial court construe statutes different from the statutes in question, as was pointed out by this court in the case of Anderson v. Birmingham, 177 Ala. 302, 58 So. 256. Section 1191 was held to be like a statute of nonclaim, and it was ruled that the bringing of the suit might answer as the presentation so far as section 1191 of the Code was concerned. This case was followed in the case of Athens v. Miller, 66 So. 702. We do not hold that section 1275 is also like a statute of nonclaim, but it is different from the local statutes construed in Bland's and Newman's Cases, supra.

The claim here sued on was presented as required by section 1275 of the Code, except it was for only $3,000, while the amount claimed in the complaint was $5,000. However, we do not think that this was such a variance as to entirely defeat a recovery. The recovery should be limited to the amount claimed in the presentation. There is no doubt that the claim for damages for the identical cause of action was presented, and that the city then denied all liability, and does now deny all liability. No possible injustice has been done, or can be done, the city, if the liability is limited to the amount originally claimed. Moreover, the exact amount of damages in cases like this cannot be easily ascertained, and the court will not hold the parties to the same accuracy as to the amounts that it will require where the damages are liquidated or easily ascertainable. In fact, it is often...