Bland v. City of Mobile

142 Ala. 142 | Ala. | 1904

ANDERSON, J.

This action was brought by the plaintiff against the defendant to recover damages for personal injuries, sustained by falling into or through a bridge of the defendant.

The court below gave the general affirmative charge for the defendant, which was based upon the fact that plaintiff had not established a proper presentation or filing of a statement, as is required by § 22, p. 2363, Acts, 101.

Tlve appellant lias two assignments of error, the giving of said affirmative charge and the ruling of the court in sustaining the defendant’s objection to her statement or claim which was offered in evidence.

If the ruling of the court was proper in excluding this evidence, then the general charge should have been given for the defendant. Consequently, the sole enquiry in this case is, did the plaintiff comply with said section in the presentation or filing of her said claim? The section reads as follows: “Be it further enacted, That no claim against the city of Mobile, whether arising ex contractu or ex delicto shall be sued on until a statement thereof giving date of actual name and residence of the original claimant and of assignee, if any circumstances and amount claimed shall have been filed with the city clerk for the consideration of the general council and either rejected by them or held by them for sixty days without action.”

The plaintiff offered in evidence a statement, which gives name and residence of the plaintiff, the nature' and elements of her injuries, when, where and how sustained, and the amount claimed* $500.00. It did conclude, by agreeing to accept $.500.00, “by way of compromise or settlement in order to avoid litigation.” We cannot see how the concluding clause above quoted could destroy the effect of the claim as a statement. It was specific enough to notify defendant that the damage claimed was $500.00 and that the claim could be adjusted for that sum.

This court held in Newman v. Mayor of Birmingham, 109 Ala. 630, in passing upon a differently worded section, but one that was enacted for the same purpose: “The purpose of the statute requiring the presentation, was to give the board opportunity to investigate and adjust claims preferred against the city, without the expense of litigation.”

We think the statement filed was amply sufficient to give the defendant notice of the claim and that it could be settled for $500.00, and contained also, every statutory recital.

Defendant admitted in open court presentation and refusal of the statement offered, which relieved plaintiff of. making preliminary proof of filing, etc. The statute, however, requires the filing of the claim as a condition to the prosecution of the suit, and it is therefore necessary that the complaint should aver the proper presentation of the claim sued on. The complaint in this case avers the filing of the claim sued on and the evidence offered did not correspond with the allegation of the complaint, and the objection to the claim offered was properly sustained.

We are aware of the rule that generally a plaintiff can recover less than he claims in his complaint, but do not think the rule embraces cases where the filing of the claim is required, setting out amount, etc., is essential to a recovery, or to- file one claim and sue on another, and then introduce in evidence the one filed, which shows upon its face that it does not correspond with the allegation of the complaint. The judgment of the circuit court is affirmed.

Affirmed.

McClellan, C.J., Tyson and Simpson, J.J.. concurring.