Brown v. Shelby County

• Decision Date: 05 February 1920
• Docket Number: 7 Div. 51
• Citation: 85 So. 416,204 Ala. 252
• Parties: BROWN v. SHELBY COUNTY.
• Court: Alabama Supreme Court

85 So. 416

204 Ala. 252

BROWN v. SHELBY COUNTY.

7 Div. 51

Supreme Court of Alabama

February 5, 1920

Rehearing Denied May 20, 1920

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by Fannie Brown against Shelby County for damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Longshore Koenig & Longshore, of Columbiana, and Arrington & Arrington of Montgomery, for appellant.

W.L Acuff, of Columbiana, and J.J. Mayfield, of Montgomery, for appellee.

THOMAS J.

This is a suit to recover damages for personal injuries, alleged to have been received by plaintiff by reason of a mule becoming frightened at a hole in the floor of a bridge and backing therefrom with a buggy attached in which plaintiff was riding.

The appeal is taken as authorized by section 3017 of the Code of 1907, plaintiff having moved for a nonsuit with bill of exceptions, on account of adverse ruling by the court on the admission of testimony. Schillinger v. Wickersham, 75 So. 11; Herrmann v. Mobile Co., 202 Ala. 274, 80 So. 112; Paterson & Edey Lbr. Co. v. Bank of Mobile, 84 So. 721.

The suit is brought under the provisions of section 2512 of the Code of 1896 as amended by sections 6 and 8 of the Act of October 10, 1903 (Gen.Acts 1903, pp. 412, 413, 414), and as affected by section 3038 of the Code of 1907.

The statute, without amendment, as embraced in the respective Codes since 1852, is as follows:

"When a bridge or causeway has been erected by contract with the county commissioners, with a guaranty, by bond or otherwise, that it shall continue safe for the passage of travelers and other persons for a stipulated time, any person injured, in person or property, before the expiration of such period, by a defect in such bridge or causeway, may sue in his own name on the bond or other guaranty, and recover damages for the injury; and if no guaranty has been taken, or the period has expired, may sue and recover damages of the county." Code of 1896, § 2512.

The trial was had on count B, in which it is averred that about the 20th day of June, 1905, the court of county commissioners of the county in question contracted with B.C. Bynum Construction Company for the building of a bridge across a designated creek on a public highway of the county; that the same was so constructed by the independent contractor; and it is averred that the county failed to take a bond or guaranty from said construction company that said bridge "should continue safe for the passage of travelers and other persons for any stipulated time, and by reason thereof it then and there became the duty of the defendant to keep said bridge in repair and in safe condition for the passage of travelers and other persons. *** That prior to and on, to wit, the 3d day of October, 1917, the defendant negligently suffered or allowed said bridge to be in an unsafe, unsound, and defective condition, which said unsafe, unsound, and defective condition consisted in this: A large hole in the floor of said bridge, which said hole was, to wit, twelve inches wide and, to wit, twenty-four inches long; and *** that defendant for, to wit, several days prior to said date last aforesaid and prior to the occurrence of the injuries hereinafter complained of had notice of said unsafe, unsound, and defective condition of said bridge, and *** that defendant after it had said notice at the time aforesaid had reasonable time in which to remedy said unsafe, unsound, and defective condition of said bridge, but negligently allowed the same to remain in said unsafe, unsound, and defective condition. Plaintiff further avers that on, to wit, said 3d day of October, 1917, whilst plaintiff was crossing or attempting to cross said bridge in a buggy drawn by a mule, in which buggy she was riding at said time at the invitation of the driver thereof who at said time was driving and in control of said mule and buggy, the said mule became frightened at said hole in the floor of said bridge, which said hole was one calculated to frighten mules of ordinary gentleness, and said mule by backing with said buggy, in consequence of said fright, suddenly backed one or more of the wheels of said buggy over, to wit, the abutment of said bridge, throwing plaintiff out and from said buggy to the ground below, thereby causing her serious and permanent bodily harm," catalogued in the count. It is further averred that an itemized claim of damages, duly verified as required by law, was filed with the board of revenue of the county on April 9, 1918, within 12 months after plaintiff sustained her injuries, which claim was disallowed by the said board of revenue on May 22d of said year.

As respects the county's liability for injuries sustained to person or property on defective bridges or causeways as a part of highways within the county, rendered unsafe for the passage of travelers thereupon, there are four classes: (1) Those not erected or constructed by the county for which no liability is fixed by statute; (2) those erected or constructed by the county without the intervention or agency of an independent contractor, for which no liability is fixed by statute; (3) those erected or constructed by contract with the county commissioners "with a guaranty, by bond or otherwise, that it shall continue safe for the passage of travelers and other persons for a stipulated time," and such period has expired (without regard to the length of the period), in which event the statute declares that the party so injured may recover damages of the county; and (4) when the bridge or causeway was erected or constructed "by contract" and no guaranty has been taken by the county, in which case recovery of damages may be had of the county.

It is immaterial to this inquiry that the statute did not provide liability for defective construction or the failure of maintenance in classes 1 and 2, or that the liability fixed in classes 3 and 4 was without time limitation as to the county's statutory liability, and may be coextensive with the life of the bridge or causeway in question. The subject is purely of statutory origin. If liability of a county for damages for injuries resulting to travelers on the highways from defective bridges and causeways is not fixed by statute, no such liability exists. Lee County v. Yarbrough, 85 Ala. 590, 5 So. 341; Williams v. Stillwell, 88 Ala. 332, 6 So. 914; Mobile County v. Maddox, 195 Ala. 336, 70 So. 259, L.R.A.1916D, 511, 513.

This announcement is in consonance with the construction given section 2512 of the Code of 1896 (section 3038 of the Code of 1907) in Barks v. Jefferson County, 119 Ala. 600, 24 So. 505, where the inquiry was made:

"Can the county be held liable for injuries resulting from the falling of a bridge erected by the court of county commissioners, on a road not a public road, when no guaranty was taken as provided in section 2512 of the Code?" conceding that the road was not a public road.

The holding was that the court of county commissioners had original legislative and judicial power, with reference to the establishment of county bridges, untrammeled by statute conferring jurisdiction; that, in the exercise of a wide discretion for the convenience of the public, such constituted authority of the county may exercise its discretion in the establishment and construction of a bridge and the levy of a special tax provided by statute therefor; that the county was liable for personal injuries caused from such defective bridge erected under contract with the commissioner's court on a road not a public road, where the guaranty bond required by statute was not taken.

So much for the statutes and constructions given when the bridge in question was erected in 1905. The act of October 10,...