Ray v. City of Birmingham, 6 Div. 920

• Decision Date: 30 May 1963
• Docket Number: 6 Div. 920
• Parties: Hattie RAY v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 751

154 So.2d 751

275 Ala. 332

Hattie RAY v. CITY OF BIRMINGHAM.

6 Div. 920.

Supreme Court of Alabama.

May 30, 1963.

Rehearing Denied July 3, 1963.

E. Ray Large, Birmingham, for appellant.

Sam R. Shannon, Jr., Birmingham, for appellee.

SIMPSON, Justice.

Appeal by the plaintiff from an order of the Jefferson County Circuit Court granting a new trial on the motion of the defendant city.

The jury returned a verdict in favor of appellant in the amount of $4,000.00 for injuries caused by falling on an alleged defect in the sidewalk in downtown Birmingham. The lower court granted appellee's motion for a new trial on the basis that the affirmative charge without hypothesis should have been given on appellee's request due to an insufficient statement of claim to the city.

The only issue raised on this appeal is whether the notice given appellee is a substantial compliance with § 659, Title 62, Code of Ala. 1940, which provides:

'No suit shall be brought or maintained nor shall any recovery be had against the city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides.'

Appellee City here contends, having raised the point in its motion for a new trial, that the sworn claim failed to state substantially the 'manner' in which the injury was received and wholly failed to accurately state the 'place' where the accident occurred. All of the other statutory requisites, concededly, were met.

Following is the language of the sworn statement of claim, as filed by appellant with the city clerk of Birmingham:

'Comes Hattie Ray, colored female, sixty-five years of age, living at 2612 19th Place Sough, Homewood, Alabama, and hereby makes the following sworn statement to be filed with the City Clerk of the City of Birmingham, Alabama, as to the following:

'On, to-wit, August 26, 1959, the affiant was walking in a southerly direction on the west side of 20th Street between 2nd and 3rd Avenues North when her foot was caught by a defect in the sidewalk on which she was walking, which caused her to be violently thrown to the sidewalk, resulting in grievous personal injuries to her, towit, compound break of her right arm. This occurrence happened in the late morning, 11:00 to 11:30 A.M., on August 26, 1959. The amount claimed for said injury is Thirty Five Thousand ($35,000.00) Dollars.'

Appellant contends that the sworn claim fulfills even the necessities of pleading accuracy, but that in any event technical accuracy is not required by § 659, Title 62, supra, but only a substantial compliance therewith.

The purpose of the statute requiring notice to the city before bringing suit for injury or death is to enable the municipality to investigate and determine the merits of the claim (Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299) and to adjust claims without the expense of litigation if the circumstances warrant (Cole v. City of Birmingham, 243 Ala. 561, 11 So.2d 148).

Technical accuracy is not...