Brooks v. City of Birmingham

• Decision Date: 07 March 1940
• Docket Number: 6 Div. 183.
• Parties: BROOKS v. CITY OF BIRMINGHAM ET AL.
• Court: Alabama Supreme Court

194 So. 525

239 Ala. 172

BROOKS v. CITY OF BIRMINGHAM ET AL.

6 Div. 183.

Supreme Court of Alabama

March 7, 1940

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action for personal injuries and property damage by J. L. Brooks against the City of Birmingham and others. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Wm Dowdell Denson and Edw. W. McDonald, both of Birmingham, for appellant.

W. J Wynn and John S. Foster, both of Birmingham, for appellee City of Birmingham.

FOSTER Justice.

This is an action by appellant against City of Birmingham, Fred J Shepherd, J. G. Whitfield and Hite Plumbing and Heating Company, a corporation. They each plead separately, generally and specially.

We will first consider the pleas of the City of Birmingham, which are here involved, in addition to the general issue. The court overruled demurrer to pleas 5, 6, 7 and 8. These pleas were also filed separately by Shepherd and Whitfield, and demurrer overruled. The Hite Plumbing and Heating Company filed a plea of res adjudicata, demurrer to which was overruled. Plaintiff took a non-suit to review the rulings, but does not assign as error the ruling on the plea of the Hite Plumbing and Heating Company. Pleas 5, 6, 7 and 8, supra, set up the fact of the judgment in favor of the Hite Plumbing and Heating Company, in which it was held not liable, and they allege that the hole in the street, set out in the complaint as the cause of plaintiff's injury, was dug and maintained by the Hite Plumbing and Heating Company.

Plea 7 alleges in addition to the foregoing that the Hite Plumbing and Heating Company was not employed by the city in any capacity, but that in creating the excavation it was acting under a contract with Fred J. Shepherd. Plea 8 alleges substantially the same matters set out in plea 7.

So that in pleas 5 and 6, it is not alleged whether the Hite Plumbing and Heating Company was employed by the city in any capacity; and in pleas 7 and 8 it is alleged that it was not so employed.

We refer to some principles established in this State which seem to have application to the questions here involved.

When a tort is committed by two or more persons, the claim against them is joint and several. Sloss-Sheffield Steel & I. Co. v. Wilkes, 231 Ala. 511 (21), 165 So. 764, 109 A.L.R. 385; Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; Section 5720, Code. And suits may be prosecuted against them separately to judgment, though there can be but one satisfaction. Griffin v. Bozeman, 234 Ala. 136, (3), 173 So. 857.

A judgment in any such case in favor of one of the tort-feasors is no defense in the suit against others unless such others are liable only under the principle of respondeat superior for the tortious act of him in whose favor judgment was rendered. Griffin v. Bozeman, supra (4); Southern R. Co. v. Lockridge, 222 Ala. 15, 130 So. 557; Walker v. St. Louis & San Francisco R. Co., 214 Ala. 492, 108 So. 388; Supreme Lodge v. Gustin, 202 Ala. 246, 80 So. 84 (18).

Sections 2029 and 2030, Code, recognize a liability by a city when the defect was wrought by one for whose conduct the city is liable under the principle of respondeat superior (City of Birmingham v. Shirley, 209 Ala. 305, 96 So. 214), or was done by one for whose conduct the city was not so responsible, and the city culpably neglected to remedy the condition so created. In the latter event, the city may be held liable although the one causing the defect is exonerated, either because he is not shown to have been a wrongdoer in that respect and not initially culpable, or if a personal defense is sustained. City of Birmingham v. Carle, 191 Ala. 539, 544, 68 So. 22, L.R.A.1915F, 797; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276 (23).

The duty of a city to use due care to keep its streets reasonably safe for ordinary travel is not controlled by the manner in which the defect arose, or by whom it was created. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23.

Under the complaint in this case the city could be held liable under either aspect of section 2029, Code, (1) that the defect was created by an authorized agent under the principle of respondeat superior, and (2) because it was created by another not in the city's employ, but the city culpably neglected to remedy the defect. Pleas which allege that the defect was created by another who has been exonerated, therefore do not show that the city by its agents did not participate in the creation of the defect, or did not culpably neglect to remedy the defect, although the one who created it may not have been a wrongdoer in that respect.

There was, as we have said, a duty on the city under certain circumstances to remedy a defect, though the one who created it did no legal wrong in that respect. City of Birmingham v. Carle, supra, 191 Ala. 544, 68 So. 22, L.R.A.1915F, 797.

Those pleas (7 and 8) which allege that the Hite Plumbing and Heating Company, which created the defect, was not employed by the city in any respect do not answer the claim included in the complaint that the city was culpable in not removing it.

We are cited to Betor v. Albany, 193 A.D. 349, 184 N.Y.S 44; Hill v. Bain, 15 R.I. 75, 23 A. 44, 2 Am.St.Rep. 873; and Town of Waynesboro v. Wiseman, 163 Va. 778, 177 S.E. 224, as holding a contrary view. But they proceed upon the idea that the...