City of Birmingham v. Shirley , 209 Ala. 305 ( 1923 )

The appeal is on the record, without bill of exceptions. The plaintiff, appellee, was awarded judgment for personal injuries resulting from his stepping or falling from a "sidewalk" into a "hole or cut" immediately adjacent to or attinging the "sidewalk." The case was submitted to the jury on the averments of count 5. The main insistence for error is rested upon the action of the court in overruling demurrer to count 5.

A condition to the right to sue a municipality of the class to which Birmingham belongs is that, within 90 days "from the receipt of" injury, the party injured shall file with the city clerk a sworn statement descriptive of the injury, etc., and giving the place of residence of the party injured. Gen. Acts 1915, § 12, p. 298. The act of complying with this requisite to enter suit is a fact that may be alleged as such. The act required by the statute is not an element of an injured party's cause of action, but is a condition to his right to implead the municipality upon his cause of action. Whether the adequately averred fact of compliance with the stated statutory prescription is sustained is to be determined from the evidence; the burden to support the allegation being upon the plaintiff. In Grambs v. City of Birmingham, 202 Ala. 490,80 So. 874, the complaint showed upon its face that the sworn statement, conforming to Code, § 1275, before its amplification through the cited act of 1915, did not disclose the inclusion in such statement of the place of residence of the injured party, an informatory recital that was required by section 12 of the act of 1915. In the count (5) under review, the averment sufficiently affirmed compliance with the provisions of the act of 1915.

The amendment of the complaint, through the addition of a count (more than 12 months after the suit was instituted) in which the cause or means of plaintiff's injury was differently described from that to which plaintiff's injury was ascribed in the original complaint, did not introduce a new cause of action for the same injury; the amended count relating back to the institution of the suit, and avoiding the intervention of the statute of limitations of one year. Code, § 5367; Ala. Cons. Iron Co. v. Heald, 154 Ala. 580, 589, et seq., 45 So. 686. Decisions illustrating the application of the rule with respect to mere variance between allegation and proof are not pertinent to the questions pertaining to the amendment of pleading or to the applicability thereto of the statutes of limitation.

The count (5) under review was not rendered faulty by reason of its failure to negative contributory negligence on the part of the plaintiff, a pedestrian. It is manifest that the count does not disclose on its face that plaintiff, on the occasion of his injury, was guilty of contributory negligence.

The last paragraph in count 5 refutes the point taken by ground 10 of the demurrer, which, it appears, was predicated of the concluding provisions of Code, § 1274.

Count 5, reproduced in the report of the appeal, does not aver, or proceed upon the theory, that plaintiff's injury was caused by a defect in the street or sidewalk over which plaintiff, a pedestrian, was moving. Its theory is that his injury was ascribable to a hole or cut in close proximity to and abutting the sidewalk, which was negligently left without warning or signal to persons using the walkway. In the oral charge the court stated a rule of municipal liability, consequent upon municipal duty to safeguard street ways from danger arising from conditions attinging a street, that consisted with the theory upon which the count (5) proceeds. The soundness and present application of the rule stated by the court in that connection is not questioned on this appeal.

The third and fourth grounds of demurrer point these objections to the sufficiency of the count (5): (a) That the defect was not averred to have existed in a public street; (b) and that the averment of defect in the public street was a mere conclusion of the pleader. Both of these grounds were inapt, for that, as already stated, the count did not assume to charge that the cause of plaintiff's injury was a result of a defect in the street or in the sidewalk.

There is no ground of demurrer efficiently taking the specific objection (Code, § 5340) that it is not averred in the count (5) that the municipality was under a duty to keep this sidewalk in reasonably safe condition for pedestrians.

The public character of the sidewalk in question was sufficiently alleged through its description as "the sidewalk, between Twentieth and Twenty-First street, Ensley avenue, Ensley, in the city of Birmingham, Ala., along which the public was accustomed to pass." In common parlance a sidewalk is the part of a street assigned to the use of pedestrians. 36 Cyc. p. 440; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117, 118; 4 Words and Phrases, Second Series, 583, 584.

The only remaining ground of demurrer sufficiently specific to require consideration is the seventh, which reads:

"(7) For that it fails to appear from the averments of said count that before the injuries complained of the governing body of the defendant had notice of the existence of the alleged defect, causing the injury complained of, for a sufficient time to have had it remedied, or that the alleged defect had existed for such length of time as that such notice was constructively given to said body."

The count is, in fact, silent in the particular noted in the quoted ground of the demurrer. The count (5) undertakes to set forth a cause of action in the category denominated (a) in the construction this court gave Code, § 1273, in the comparatively recent pronouncement made in City of Birmingham v. Carle,191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797, and reaffirmed in Bloom v. City of Cullman, 197 Ala. 490, 495, 73 So. 85. It was there held, consistent with the terms of the statute (Code, § 1273), that, where the culpable act or omission in question was legally attributable to some officer or agent of the municipality, the liability contemplated was within category (a) as defined in the statute. To construct a sufficient count on a cause of action assignable to that class under the statute is not required that notice of the condition or wrong causing the injury or damage should be brought home to the governing body or thereto imputed in consequence of the period of time such condition or wrong shall have existed. That prerequisite to municipal liability is referable alone to the other class, viz. (b) defined in Code, § 1273. Where the municipality either causes or permits the creation, through the act or omission of its agents, officers, or employees, acting within the line and scope of their authority, of a condition or wrong proximately causing injury, the statute (section 1273) does not make liability depend upon notice to the governing body of the condition or wrong thus created by the municipality's own agents, officers, or employees. Notice or knowledge of that which the municipality's authorized agents, officers, or employees do or omit in circumstances within the statute's class (a) is imputable to the municipality; and the municipality's liability is consequent upon the application of the doctrine of respondeat superior. The Carle and Bloom Cases, supra. The seventh ground of demurrer was overruled without error.

The recent decision of City of Montgomery v. Ferguson,207 Ala. 430, 93 So. 4, involved a case falling within class (b) of our construction of Code, § 1273, in the Carle and Bloom Cases. It was not asserted in the Ferguson Case, supra, that the agents, officers, or employees of the city of Montgomery created the condition which, it was averred caused Ferguson's injury.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.