City of Birmingham v. Scott , 217 Ala. 615 ( 1928 )

The amendment to the complaint related to the same injury or subject-matter, was not a departure, and was permissible under section 9513 of the Code of 1923. Indeed, the amendment merely added the fact that the notice as required by the statute was given the city before the suit was brought. Counsel for appellant insists that the amendment should not have been allowed for the reason that the original complaint did not state a cause of action, as an averment that the notice was given was a condition precedent to a recovery, and, this being true, there was nothing upon which the amendment could be based and as to which it could not relate back so as to interrupt the statute of limitations, and many cases in other jurisdictions are cited on the subject. It must be observed that our statute, section 9513, is very liberal and quite broad and much more so than many of the statutes or rules of other states. As to whether or not there would be merit in the contention if the original complaint failed to state a cause of action we need not decide, for the reason that the complaint, before amendment, in the case at bar did not fail to state a cause of action. "It is frequently provided by statute or charter that no action shall be maintained against public corporations for personal injuries from defective streets, unless notice thereof and a statement of the claim is filed with a designated official within a certain time. Such provisions constitute conditions precedent within the rule requiring performance thereof to be alleged in the complaint." 4 Am. Eng. Ency. of P. P. 659. This rule has been followed by our own court. City of Birmingham v. Edwards, 201 Ala. 251,77 So. 841; Grambs v. City of Birmingham, 202 Ala. 490,80 So. 874. We think, however, while a failure to make this averment would make the complaint bad against demurrer, its omission does not render the complaint so abortive that it would not support a verdict or judgment and therefore fail to state a cause of action.

"When the complaint failed to aver and prove the performance of a condition precedent, and defendant moved for a nonsuit, and after the motion was overruled introduced evidence which enabled the plaintiff to supply the defect, it was held that by so doing the objection was waived." Smith v. Compton, 6 Cal. 24.

"If the declaration or complaint fails to aver performance of conditions precedent, but the plea or answer avers performance of such conditions, naming them, the defect in the plaintiffs' pleading is cured." Dayton Ins. Co. v. Kelly, 24 Ohio St. 345, 15 Am. Rep. 612.

"When the declaration fails to aver the performance of a condition precedent, but the evidence shows the performance was proved on the trial, the defect is cured by verdict." Happe v. Stout, 2 Cal. 460; Bailey v. Clay, 4 Rand. (Va.) 346.

"And when the performance of the condition precedent is involved in the issue, and necessary to have been proved or admitted, the failure to aver performance thereof in the declaration will be cured by verdict." Colt v. Root,17 Mass. 229; Delashman v. Berry, 21 Mich. 516.

While the cases, supra, do not involve the identical point before us, they do, in effect, hold that while to aver and prove performance of the notice is a condition precedent, the failure to make such an averment does not prevent the complaint from being sufficient to support a verdict and judgment, and if it will do that, it does not fail to state a cause of action, notwithstanding it may be defective on demurrer.

Section 12 of the Act of 1915, p. 298, reads as follows:

"No suit shall be brought or maintained nor shall any recovery be had against any such city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was 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 injury received and the street and house number where the party injured resides."

We think the amendment to the complaint so refers to and adopts the notice of the injury as to make said notice a part thereof.

We also think that the notice sufficiently locates the place of the injury as being at a bridge in Fifth avenue near Forty-Second street, Wylam, Ala. It is also sufficient as to the time, as it says "about 7 o'clock p. m." The notice also gives the street number of the residence of the injured party. We think the notice sufficiently describes the manner in which the party was injured; that is, the automobile in which he was riding fell into a defect in the bridge which was without lights or guards. There is sufficient causal connection between the defect charged in the complaint and the one set out in the notice.

The complaint sufficiently described the defect. It locates the bridge; says the automobile fell through because said bridge was rotten. This is more positive and specific than the complaint held defective in the case of Tenn. Co. v. Smith.171 Ala. 251, 55 So. 170.

It is true that in actions of this kind against a municipality it is incumbent upon the plaintiff to prove notice of the defect or facts from which notice may be implied, and these facts should be averred, but, where the complaint charges that the municipality negligently maintained or permitted the defect, this is the equivalent of charging notice, express or implied of said defect. Lord v. City of Mobile, 113 Ala. 362,21 So. 366; City of Ensley v. Smith, 165 Ala. 387, 51 So. 343; City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4.

In the case of Cullman v. McMinn, 109 Ala. 614, 19 So. 981, the case was reversed for failing to sustain the demurrer to the complaint and without specifications of a particular count or counts the court evidently had in mind the two amended counts which did not charge notice or that the city negligently suffered or permitted the bridge to remain in bad repair or overlooked the fact that this averment appeared in counts 2 and 4. But, if the court intended to hold that all of the counts were bad, this case was in effect overruled to this extent by the cases above cited.

There was no error in overruling the defendant's demurrers, proceeding upon the theory that the complaint failed to aver notice or facts from which notice would be implied in view of the fact that it charged that the defendant "negligently caused the automobile to fall through the bridge."

The bill of exceptions does not purport to set out all of the evidence, but only a small portion of same, and which does not relate to the issues or evidence upon the main trial, and we cannot put the trial court in error as to the given or refused charges, or as to the oral charge, in the absence of an exception thereto disclosed in the bill of exceptions even if it contained all of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE, BOULDIN, and BROWN, JJ., concur.