Opinion
6 Div. 385.
October 29, 1929. Rehearing Denied November 19, 1929.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action for damages for personal injuries by Charlotte Walthall against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Affirmed.
Certiorari denied by Supreme Court in City of Birmingham v. Walthall, 220 Ala. 428, 125 So. 800.
The amended complaint is as follows:
"Plaintiff claims of the defendant, a municipal corporation, the sum of Ten Thousand ($10,000.00) Dollars, as damages for that heretofore on, to-wit, the 22nd day of January, 1927, while the plaintiff was walking on a wooden foot bridge in Avenue L, Ensley, Alabama, which was a public street or public avenue of the City of Birmingham, Alabama, and at a place between 21st and 22nd Streets, the plaintiff fell into a defect on or in said street or avenue consisting of a hole in said wooden bridge, by reason of which said fall, plaintiff sustained the following personal injuries and damages: Plaintiff's legs were shivered, splintered or broken, her legs, arms and other portions of her body were cut, bruised, and lacerated; plaintiff was unconscious for a long time; she was internally injured; she suffered great physical pain, mental anguish, inconvenience and annoyance and was caused to expend or become liable for large sums of money for surgical and medical treatment in and about attempting to heal and cure her said injuries.
"Plaintiff avers that all of her said injuries and damages were proximately caused by the negligence of the defendant in that the defendant negligently caused or negligently allowed said defect to be, or remain in said public street or public avenue.
"Plaintiff avers that on to-wit, January 28, 1927, and more than ten days before the filing of this suit and within 90 days after the receipt of said injuries, she caused to be filed with the City Clerk of the City of Birmingham, Alabama, a sworn statement verified by plaintiff's oath, stating substantially the manner in which injuries were 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 injuries received and the Street and house number, where the plaintiff resided."
Horace C. Wilkinson, of Birmingham, for appellant.
A complete averment and proof of compliance with the statute are conditions precedent to the maintenance of suit and recovery in actions for personal injuries against the appellant. Acts 1915, p. 294, § 12; Grambs v. Birmingham, 202 Ala. 490, 80 So. 874; Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Brannon v. Birmingham, 177 Ala. 419, 59 So. 63; Benton v. Montgomery, 200 Ala. 97, 75 So. 473. Failure to aver that the alleged defect was not marked or guarded by signal or barrier, etc., renders the complaint demurrable. McCoull v. Manchester (Va.) 4 S.E. 848; Soule v. Weatherby, 39 Utah, 580, 118 P. 833, Ann. Cas. 1913E, 75; Cotter v. Lindgren, 106 Cal. 602, 39 P. 950, 46 Am. St. Rep. 255; Coffey v. Berkeley, 170 Cal. 258, 149 P. 559. A complaint, to show actionable negligence, must definitely allege that the street was in an unsafe condition for ordinary travel, or else sufficiently describe the nature, size, and character of the alleged defective condition so as to show that the street is in an unsafe condition for ordinary travel. Plummer v. Milan, 70 Mo. App. 598; City of Huntington v. Burke, 12 Ind. App. 133, 39 N.E. 170; City of Vincennes v. Spees, 35 Ind. App. 389, 74 N.E. 277. It is necessary to aver the street was open for public travel. Clark v. North Muskegon, 88 Mich. 308, 50 N.W. 254. The complaint should designate with reasonable certainty the location of the defect in the street. 26 Cyc. 1468; White, Negl. Mun. Corp. 946; Kellogg v. Inhabitants of Northampton, 4 Gray (Mass.) 66. The complaint does not sufficiently show that the defect was called to the attention of the governing body or had existed for an unreasonable length of time. Cullman v. McMinn, 109 Ala. 614, 19 So. 981; White, Negli. Mun. Corp. 532.
Mullins Jenkins, of Birmingham, for appellee.
The complaint is not subject to demurrer. City of Birmingham v. Scott, 217 Ala. 615, 117 So. 65; Montgomery v. Moon, 205 Ala. 590, 88 So. 751; Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Birmingham v. Shirley, 209 Ala. 305, 96 So. 214. Technical accuracy in claims against municipalities is not required. Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382.
This appeal is from a judgment for $300 rendered in favor of appellee as a result of her suit, against the city of Birmingham, for personal injuries claimed to have been sustained by her on account of a defect, alleged by the plaintiff to have been in a certain public street in said city.
The complaint claimed damages of $10,000 and by leave of the court was amended as to matters of form and substance.
Appellant, city, strenuously insisted in the court below, and now insists here, that the complaint as amended does not show that the hole in question was an actionable defect in the street, or that it constituted a defective condition; also that the hole was not described with sufficient certainty. The demurrers raising these questions contained 87 grounds. These demurrers being overruled by the trial court, defendant interposed plea in short by consent, the general issue, etc.
The action of the court in overruling the demurrer is made the principal insistence of error on this appeal. We do not accord to this insistence, and are of the opinion that the complaint as amended met every requirement of good pleading. The court properly so held. The complaint shows the plaintiff was injured, and how she was injured; it shows the place where the injury occurred, and the existence of a defect in a public street or avenue consisting of a hole in a wooden bridge on said street, and it ascribes plaintiff's injuries proximately to the negligence of the defendant in negligently causing or negligently allowing said defect to be or remain in said public street or public avenue. The complaint also shows the filing of the necessary statutory claim. As stated, we think the complaint as amended was sufficient to inform the municipal authorities of the manner in which the injury was received and the time and place where the accident occurred, the damage claimed, and the substantial nature and character of the injury received. These and other averments in the complaint met the required rule. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382.
The facts in this case, as shown by the evidence, presented a jury question. The cause was properly submitted to the jury, and we discover no reversible error in this connection.
It is ordered that the judgment of the lower court from which this appeal was taken will stand affirmed.
Affirmed.