Opinion
6 Div. 592.
December 22, 1921.
Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.
Harsh, Harsh Harsh, of Birmingham, for appellant.
Plaintiff's claim, not being for personal injuries, but growing out of a nuisance, is not within the terms of the statute. Acts 1915, p. 298, § 12. And, this section being in derogation of the common law, it must be strictly construed. (Tex.Civ.App.) 216 S.W. 208; 128 Mich. 650, 87 N.W. 894; 106 Wn. 608, 181 P. 43; 163 App. Div. 676, 148 N.Y. Supp. 966; 109 App. Div. 424, 96 N.Y. Supp. 704; 97 App. Div. 480, 90 N.Y. Supp. 744; 175 N.Y. 346, 67 N.E. 623; 73 Wis. 380, 41 N.W. 407; 102 Me. 197, 66 A. 390, 10 L.R.A. (N.S.) 249, and note.
W. J. Wynn, of Birmingham, for appellee.
The court properly sustained demurrers, raising the point of failure to file sworn statement of injuries. Acts 1915, p. 298; 182 Ala. 633, 62 So. 40; 12 Ala. App. 431, 68 So. 566; 188 Ala. 292, 66 So. 100, L.R.A. 1915C, 450; 2 Ala. App. 652, 56 So. 830; 161 Ala. 253, 49 So. 813; 152 Cal. 279, 92 P. 640; 86 Wn. 305, 150 P. 422; 88 Wis. 618, 60 N.W. 1054; post, p. 79, 92 So. 7.
The appeal is upon the record, after nonsuit taken. The judgment entry and bill of exceptions shows that plaintiff deemed it had become necessary, and suffered a nonsuit for and on account of the "ruling of the court in sustaining defendant's * * * demurrers to the plaintiff's complaint as amended," and by bill of exceptions reserved "for the decision of the Supreme Court of Alabama the said ruling or decision of said court." Paterson Edey Lumber Co. v. Bank of Mobile, 203 Ala. 536, 84 So. 721, 10 A.L.R. 1037.
It is admitted that, if statutory compliance is applicable, presentation of claim for personal injury, such as averred, against a municipality, is a condition precedent to recovery. Acts 1915, pp. 297, 298, §§ 10, 12. Appellant insists that such statute does not apply to an injury, the proximate result of that nuisance described in the complaint. After a re-examination of the question presented by demurrer in the instant case, we are of opinion that the decision in Birmingham v. Prickett (Ala. Sup.) 92 So. 7, has application and supports the ruling of the trial court. No good reason is found in the statute or decisions of this and other courts causing us to depart from the former ruling.
Post, p. 79.
Affirmed.
All the Justices concur.