Newman v. Mayor of Birmingham , 109 Ala. 630 ( 1895 )

HEAD, J.

The appellant, Newman,, sued appellee for damages for raising the elevation of the grade of the street and sidewalk in front of his residence, and constructing them accordingly. Under the evidence, on the merits of his claim, he was entitled to recover; but the court ruled that there was no evidence tending to show that he had legally presented his demand to the mayor and aldermen, and procured action, or refusal to act, upon its allowance, before the institution of the suit, as. required by the city charter (Acts 1890-91, p. 114, § 36, p. 149), and, on request, gave the affirmative charge in favor of the defendant; whereupon the plaintiff took a non-suit with bill of exceptions. The charter does not require application for the allowance of claims to be made in writing. The proper description of plaintiff’s property is, "Lot 1 and part of lot 2 in block 35,” fronting on 19th street, and bounded on the south by Sixth Alley, upon which stood a ten-room brick dwelling-house, occupied as his residence, where he had resided-for a number of years. He owned no other property in the city of Birmingham. After the damage accrued, plaintiff made out in writing and presented to the chairman of the street committee a claim in the following words: “Mayor and Aldermen of Birmingham, To Y. P. Newman, Dr. Said Y. P. Newman is the owner of lot 3 and part of lot 4 in block 35, and according to the plan and survey of said city, on •which lots is his residence, erected after the grade of said street had beenfixed by the city;” &c., going on to describe the acts of the defendant in afterwards raising the grade and injuring the property, and claiming $1,500 damages. It is thus seen that a mistake was made in the numbers of the lots. The evidence tends to show that this claim was put before the board of mayor and aldermen by the chairman of the street committee, and went into the custody of the clerk of that body, who was the proper custodian of such papers, and who produced it on the trial of this cause. The minutes of the regular board meeting, on September 21st, 1892, which was shortly after this claim was preferred, shows, as follows: “The Miscellaneous and Street Committee, through Alderman Levy, reported as follows, and the reports were concurred in. •* * * * Petition of Y.'P. Newman for $1,500 damages caused by change of grade, disallowed.” The evidence tends to show that there was no oral comment upon, or discussion of, the claim at that time, but that the board acted alone upon the recommendation or report of the committee, which included also a number of other claims, several of which were of the same character. Levy was the chairman of the committee ■ Moore and Perkins the other members. Before they reported, they issued a citation to plaintiff to appear before them. He ■obeyed, and when before them discussed the matter with them, and told them again that he demanded $1,500. He says, “I talked to them about my residence, and explained to them how the residence had been injured. No other property was mentioned between us, and nothing was said about any lot numbers. Mr. Levy was my next door neighbor and had been for several years. He knew which my property was, and where I lived.” A. O. Lane was the mayor of the city at the time, and was present and presided at the meeting when the report of the committee was acted upon. He testifies that he was familiar with the claim plaintiff was making before the board, for injury to his residence; that he lived very near plaintiff,, and knew where his residence was ; generally passed by-his house, along 19th street, on his way to his own home. He had discussed the matter with plaintiff, and told him he thought he claimed too much. The three members of the committee were absent from the city at the time of the trial of this cause. The evidence shows that it was the practice of the board to refer all such claims to the said committee. As we have seen, plaintiff’s testimony tended to show that he explained to "the committee how his property was injured. His testimony also shows that a very material ¿art of the injury consisted of the filling up of the alley which bounded one side of his property. It ^was for the jury to say, under the evidence, whether ox*, not that was explained t'o the committee. If plaintiff’s lots one and two in block 35 were bounded by the alley, it is evident that lots three and four in the same block were not. The board.trusted the committee to ascertain and consider all material facts, and it was the duty of the committee to advise the board of such facts as it was deemed material for them to know, and it is just to presume they did so, or that the board was satisfied with what they ascertained and did, without requiring any special report of facts. Very likely, if such a special report had been required, the board would have been left in no ignorance of the real claim of the plaintiff. 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. Technical accuracy is not required. It is enough- if the board is fairly informed of the nature and amount of the claim, so that it can act intelligently in the investigation' and allowance or rejection of the same.

We are clearly of opinion the case' should have been submitted to the jury.

Reversed, non-suit set aside, and cause remanded.-