Anderson v. City of Birmingham

Damage From Overflow. Municipal Corporation; Actions; Torts; Claims; Presentation. —The commencement of a suit against a city for damages for overflow caused by a street embankment and grade, within six months of the damage, was a sufficient presentation of the claim within the provisions of section 1191, Code 1907.

Appeal from Birmingham City Court. Heal’d before Hon. C. W. Ferguson. Action by Hattie I. Anderson against the City of Birmingham and another. From a judgment for defendants, plaintiff appeals. The gravamen of the charge is that, in grading and erecting an embankment along Twenty-Sixth street, defendants stopped and prevented the natural flow of the surface water, which gathered and ran over and upon and through and from plaintiff’s said property abutting on said street, and caused the said surface water to pond, settle, and stagnate upon the premises, to her great damage and injury. The fourth plea was that plaintiff failed to present her claims for damages described in the complaint to the clerk of the city of Birmingham before filing the suit in this cause. The beginning of the suit for damages within six months from the causation thereof ivas a sufficient presentation of the claim against the city. Sec. 36, Acts 1890-1, p. 149; Newman v. Birmingham, 109 Ala. 630; Sec. 1191, Code 1907. The requirement of notice is a condition precedent. — 128 Mass. 387; 2 Elliott on Roads & Streets, 824; 18 N. W. 928; 62 N. W. 674. The absence of an averment of dne presentation of the claim renders the complaint so infirm that a valid judgment cannot be rendered upon it. — Newman v. Birmingham, 109 Ala. 630; Bland v. Mobile, 142 Ala. 142; Washington County v. Porter, 128 Ala. 278. Failing to state a cause of action in the complaint, the court was authorized to render a verdict for defendant whether objection was taken by demurrer or not.— Jordan v. N. C. & St. L., 131 Ala. 220; L. & N. v. Williams, 113 Ala. 402.