Brannon v. City of Birmingham

59 So. 63 | Ala. | 1912

ANDERSON, J.

Section 1275 of the Code of 1907 says: “No recovery shall he had against any city or town on a claim for personal injury received unless a sworn statement he filed with the clerk, by the party injured, or his personal representative in 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.” 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 suit.—Newman v. Birmingham, 109 Ala. 630, 19 South. 902; Bland v. Mobile, 142 Ala. 142, 37 South. 843.

It may be that the statute only requires a substantial statement of the injury as well as of the time and place of same, and does not require the naming of the exact hour of the day or night, or the identical spot, but it does contemplate that the claim should at least specify the subdivision of the city — that is, the street and block, or designate the same as being between certain streets and avenues, as the case may be — and should at least sayr whether during the day or night if the exact hour is not given. The plaintiff attempted to comply with the statute as to the designation of the place, and fixed it in her sworn statement and complaint as being Forty-Ninth street, between Tenth and Eleventh avenues, but the proof showed that the injury was sustained between Ninth and Tenth avenues, on an entirely different block from the one named in the statement and complaint, and there was, of course, a fatal variance.—Bland v. City of Mobile, supra. The variance was material, for the statement filed with tlxe city designated a certain block between Tenth and Eleventh avenues, and the authorities, upon investigation, may have found no hole and would naturally make no attempt looking to a settlement of the claim, when, if the proper place had been set out, they may have discovered the defect, and would doubtless have attempted an adjustment of the said claim before being put to the expense and trouble of a lawsuit.

Moreover, the bill of exceptions does not purport to set out all the evidence, and, if the statute was susceptible of a different construction and the variance was not fatal, we could not reverse the trial court for giving the general charge for the defendant as there may have been evidence showing a complete, undisputed defense to the action.

The judgment of the city court is affirmed.

Affirmed.

Ali the Justices concur, except Dowdell, C. J., not sitting.