Tolbert v. City of Birmingham

• Decision Date: 16 June 1955
• Docket Number: 6 Div. 427
• Parties: , 63 A.L.R.2d 901 Mae TOLBERT v. CITY OF BIRMINGHAM et al.
• Court: Alabama Supreme Court

Page 336

81 So.2d 336

262 Ala. 674, 63 A.L.R.2d 901

Mae TOLBERT v. CITY OF BIRMINGHAM et al.

6 Div. 427.

Supreme Court of Alabama.

June 16, 1955.

Geo. Rogers and W. A. Jenkins, Jr., Birmingham, for appellant.

Wm. L. Clark, Birmingham, for appellee City of Birmingham.

Bainbridge & Mims, Beddow & Jones and Robt. W. Gwin, Birmingham, for individual appellees.

GOODWYN, Justice.

Appellant, plaintiff below, brought suit against the City of Birmingham to recover damages for personal injuries allegedly sustained on October 31, 1949, as the result of a fall on a defective public sidewalk. To comply with Code 1940, Tit. 62, § 659, plaintiff filed with the City Clerk of Birmingham on November 22, 1949, a sworn statement of claim reciting the following:

'You are hereby respectfully notified that the undersigned, while walking on and over a public sidewalk in the City of Birmingham, Alabama, to-wit, at or near the Southwest corner of the intersection of 24th Street and 3rd Avenue, North, was injured in that while walking on the west side of Twenty-first Street to-wit, at or near the corner where Twenty-first Street intersects Third Avenue, North, she fell, tripped or stumbled on or into a depression or hole in the sidewalk. The undersigned's left arm was broken and fractured, her left knee was bruised, contused, wrenched and sprained, she was made sick and sore and caused to suffer much pain and mental anguish, she was permanently injured. The accident occurred on October 31, 1949, about 12:00 o'clock noon and the undersigned claims Five Thousand Dollars ($5,000.00) as damages for her said injuries. The undersigned lives at Dora, Route 1, Alabama, and lived at said address at the time she received her injuries.'

The original suit was filed on December 22, 1949.

The City demurred to the complaint and on November 1, 1950, moved for a non-suit on the ground that Mrs. L. A. Latham, as lessee, and Dr. Dan C. Donald and Mrs. Dan C. Donald, as owners, of the property abutting the defective sidewalk should have been joined as parties-defendant for the reason that they are 'the persons primarily liable for the condition of the sidewalk at the placed referred to in the plaintiff's complaint.' The City's motion for non-suit contains an averment to the effect that on May 24, 1950, the City's attorney of record informed the plaintiff's then attorney of record of the names of the parties that should have been joined with the City as parties-defendant. Plaintiff answered the motion, denying each and every allegation and demanding strict proof. Evidence on the motion was then taken orally before the court. Thereupon the court, on November 2, 1950, entered judgment that said parties should have been joined as defendants and that 'unless the complaint is amended so as to join said parties as defendants the motion for a nonsuit will be granted.' The complaint was then amended on November 24, 1950, by adding said parties as defendants and amended further on March 24, 1952, by adding the following to the one count of the amended complaint:

'The sworn statement next above referred to and which plaintiff filed as aforesaid on, to-wit, November 22, 1949, is copied herewith as Exhibit 'A' and made a part hereof. Plaintiff further avers that in said sworn statement there is typographical error in that after having correctly stated the location of the place where plaintiff was injured as 'at or near the Southwest corner of the intersection of 24th Street and 3rd Avenue, North', said statement further referred through error to said location as 'Twenty-first Street' when in fact and in truth Twenty-fourth Street was intended. Plaintiff further avers that the City officers and employees were not in fact misled in any wise by this error in the statement but were correctly advised thereby of the exact location where plaintiff was injured as aforesaid and did immediately following the filing of said claim investigate and examine the defect on the sidewalk where plaintiff was in fact injured and with full knowledge at that time that plaintiff was injured at said place.'

The newly joined defendants, Mrs. Latham and the Donalds, interposed a plea, separately and severally, that 'the cause of action, as alleged in the plaintiff's complaint as last amended, is barred by the statute of limitations of one year.' Plaintiff demurred to this plea.

The City demurred to the complaint as last amended. The grounds assigned all go to the sufficiency of the sworn statement, supra, filed with the City Clerk on November 22, 1949, to meet the requirements of Code 1940, Tit. 62, § 659, supra. This section applies specially to the City of Birmingham and provides as follows:

' § 659. Claims for personal injury and property damage filed within ninety days.--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.'

For requirement for filing of tort claims against cities generally, see Code 1940, Tit. 37, §§ 476, 504. The specific defects pointed out by the demurrer are that the complaint shows on its face that the sworn statement filed with the city clerk (1) 'does not sufficiently state the place where the accident occurred', (2) 'does not show with sufficient certainty whether the alleged accident occurred on Third Avenue North between 23rd and 24th Streets or on 24th Street between 2nd and 3rd Avenues, or on 21st Street between 2nd and 3rd Avenues', and (3) 'does not state the street and house number of plaintiff' nor 'with sufficient certainty the residence address of the plaintiff.'

Judgment was rendered overruling plaintiff's demurrer to the plea of the statute of limitations and sustaining the City's demurrer to the complaint as last amended. Plaintiff's motion for a non-suit being granted, she brought this appeal for review of said rulings.

Argument is made on behalf of the City that to permit a claimant 'to ignore the requirements of the statute pertaining to the joinder of persons liable with the City and thereby place such persons in a position where they can set up the statute of limitations as a defense after being joined upon order of the trial court, the power to defeat the purpose of the mandatory provisions of the statutes referred to is within the hands of the attorneys for the claimant.' It is further argued 'that the term 'personal defense' as used in Section 503 [Code 1940, Tit. 37] was never intended to apply to a defense under the statute of limitations which is allowed to operate as a result of a deliberate failure on the part of the claimant's attorneys to join as parties defendant the persons primarily liable'; and that 'a contrary conclusion by this Court in this case would virtually emasculate the mandatory provisions pertaining to the joinder of the persons who are primarily obligated to respond in damages to a claimant.'

Code 1940, Tit. 7, § 26, prescribes a limitation of one year within which an action for personal injuries must be commenced. It is shown by the complaint that the injuries were sustained on October 31, 1949. And the record shows that the action against defendants Mrs. Latham and the Donalds was commenced on November 24, 1950, more than a year after the injuries were sustained, by adding them as parties-defendant in the suit against the City, which was commenced within the one year period. In this situation, it seems clear that the demurrer to the plea was properly overruled.

We have held that, as against a party added by amendment, the statute of limitations continues to run until the amendment is filed making him a party to the suit. Ruffin v. Crowell, 253 Ala. 653, 658, 46 So.2d 218; Birmingham Gas Co. v. Sanford, 226 Ala. 129, 133, 145 So. 485; Sibley v. Bowen, 222 Ala. 13, 14, 130 So. 547; Roth v. Scruggs, 214 Ala. 32, 34, 106 So. 182, 185. As stated in the last cited case of Roth v. Scruggs:

'As against a party added by amendment, the statute of limitations continues to run until the amendment is filed making him a party to the suit. A suit against one person cannot stop the running of the statute against another. Wilson's Adm'r v. Holt, 91 Ala. 204, 8 So. 794; Seibs v. Engelhardt, 78 Ala. 508; Nelson v. First Nat. Bk., 139 Ala. 578, 36 So. 707, 101 Am.St.Rep. 52; Cochrane v. Fuller, 17 Ala.App. 230, 84 So. 400.'

In discussing the question in Sibley v. Bowen, supra [222 Ala. 13, 130 So. 548], we said the following:

'Appellee [plaintiff] contends that, as the amendment making Sibley a party [defendant] was authorized by section 9513, Code 1923 [Code 1940, Tit. 7, § 237], by which parties defendant may be added by amendment and in which it is provided that certain amendments so authorized shall relate back to the commencement of the suit, therefore the suit as to Sibley so related, preventing the bar of the statute. This court has otherwise interpreted the statute. As to a party added by amendment, the statute of limitations continues to run until the amendment is filed making him a party. Roth v. Scruggs, 214 Ala. 32, 106 So. 182.'

We see nothing in § 503, Tit. 37, Code 1940, supra, which has the effect of suspending the running of the statute of limitations as to persons who are jointly liable with the City. Section 503 is as follows:

'The injured party, if he sues the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as defendant or defendants of the...