McDougall v. City of Birmingham

That "hardships make shipwreck of the law" is an old saying, often quoted in the books. It may appear harsh in the instant case to deny plaintiff's right of action for a noncompliance with the statute, but the courts are only to be concerned with giving effect to the law as written by the lawmaking body upon which alone responsibility must rest.

Our previous decisions disclose a strict adherence to the rule that substantial compliance with the statute is a condition precedent to the maintenance of the suit, upon the theory that liability of municipalities in tort actions is statutory in origin and the Legislature may attach such conditions to the right to recover as it deems proper. And these "statutory prescriptions * * * are generally construed as being mandatory," to use the language of Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874. Indeed, in the Grambs Case it was held that these conditions precedent were of such a character as not to be the subject of waiver by the municipality. Further illustrative are the cases of Benton v. City of Montgomery, 200 Ala. 97, 75 So. 473, and Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63. In the Benton Case plaintiff's action against the city was destroyed because of the mistake of one day in stating the date of the injury in the claim filed, and in the Brannon Case a like result for a mistake in designating in the filed claim the place of the injury as at Forty-Ninth street, between Tenth and Eleventh avenues, when the proper location was between Ninth and Tenth avenues.

I am in entire accord with the statement that technical accuracy is not required, and substantial compliance with the statute suffices. McKinnon v. City of Birmingham, 196 Ala. 56,71 So. 463; City of Bessemer v. Barnett, 212 Ala. 202,102 So. 23. But as I view the instant case there has been no compliance whatever.

Plaintiff's claim filed on his behalf by next friend or guardian would answer the purpose of the statute, which looks not only to investigation but settlement as well. City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664. But to follow the statute there must be filed a claim by the minor or some one in his behalf. Under certain conditions the mother would also have a right of action for injuries to her minor son, but such a claim is separate and distinct from that of the minor. This was clearly pointed out by the New York court in Seliger v. City of New York (Sup.) 88 N.Y. S. 1003 (a case here very much in point contrary to the majority view), where it was said: "The father's claim and that of the infant are quite distinct, and founded upon * * * different considerations. The filing of a claim with the comptroller is to afford * * * an opportunity to make a settlement in behalf of the city. * * * Unless a notice is filed as to each claim, the purpose of the statute is defeated."

In the case here considered the claim (an exhibit to the count and which appears in the report of the case) purports on its face to be that of the mother and not that of the minor. It is her claim, as mother of the minor, and not the claim of the minor by her as next friend. To hold otherwise is, it appears to the writer, tantamount to an amendment of the filed claim. A reading of the Minnesota case of Ackeret v. Minneapolis, 121 Minn., discloses both a difference in the wording of the statute from our own, as well as a marked difference in the form of the claims filed.

I am fully persuaded the learned trial judge but followed the plain mandate of the statute, and that his ruling should be here affirmed. I therefore respectfully dissent.

BOULDIN and BROWN, JJ., concur in the foregoing opinion.