City of Anniston v. Hillman, 7 Div. 861.

• Decision Date: 25 January 1930
• Docket Number: 7 Div. 861.
• Citation: 126 So. 169,220 Ala. 505
• Parties: CITY OF ANNISTON v. HILLMAN.
• Court: Alabama Supreme Court

126 So. 169

220 Ala. 505

CITY OF ANNISTON v. HILLMAN.

7 Div. 861.

Supreme Court of Alabama

January 25, 1930

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action for damages by Dessa Hillman, as administratrix of the estate of W. A. Hillman, deceased, against the City of Anniston. From a judgment for plaintiff, defendant appeals. Affirmed.

Gardner J., Anderson, C.J., and Foster J., dissenting.

James F. Matthews and Merrill, Field & Allen, all of Anniston, for appellant.

Rutherford Lapsley and Leslie C. Longshore, both of Anniston, for appellee.

BOULDIN J.

The appeal is from a judgment for the payment of money rendered in an action of tort against a municipal corporation.

A supersedeas bond was executed by the mayor on behalf of the municipality, but without surety. No other security for costs of appeal was given.

Appellee moves to dismiss the appeal for want of a proper supersedeas bond or other security for costs. Code, § 1900, dealing with the duties and powers of the mayor, says: "He shall execute all deeds and contracts, and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond." A supersedeas bond on appeal is assuredly a bond in judicial proceedings. Appellee's view is that this section has no relation to bonds on appeal, and, in support of that view refers to certain sections dealing with appeals by municipalities.

In a case involving the validity of a city ordinance, the city may appeal from an adverse judgment of the recorder to the circuit court "without bond." Code, § 1937. But, on appeal in such case from the adverse ruling of the circuit court, the city must give security for costs of appeal. Code § 1943.

In city tax cases appeals may be taken from the decree of the circuit court, "provided that no sureties on any bond shall be required of a city or town." Code, § 2147. In local assessment cases, the city may appeal from the decree of the circuit court, "without giving bond." Code, § 2214.

These statutes do not cover the entire field of appeals by municipalities. They provide for special cases. In the main, they are cumulative provisions, reasserting the general policy declared in section 1900.

Behind this statute may be discerned the policy of relieving a municipality seeking a review by appeal from incurring an obligation to protect a surety at all events to the displacement of priorities in payment of claims against the city. Some judgments for money are payable only from surplus revenues, after making fair and reasonable provision for carrying on the usual government activities committed to cities. White v. Mayor & Council of Decatur, 119 Ala. 476, 23 So. 999.

We are of opinion section 1900 governs the case; that the mayor was authorized to execute a supersedeas bond without surety. No other security for costs was required. Motion to dismiss the appeal is denied.

Appellant also raises a preliminary question:

Under the complaint and evidence in support thereof, the city was liable, if at all, under the doctrine of respondent superior, for the wrongful act of its foreman or superintendent in committing an assault upon plaintiff's intestate, resulting in his death, and while acting within the line and scope of his employment in working the decedent as one of the street construction force of the city. Defendant moved the court to require plaintiff to amend by bringing in this foreman as party defendant, or, failing so to do, suffer a nonsuit under Code, § 2030. Denial of this motion is assigned for error and presented in argument.

This court has construed section 2029 (1273) and section 2030 (1274) as limiting the joinder of other persons liable for the same tort to outside parties creating a dangerous condition in the street, the city's liability arising from negligent failure to remove such defect or obstruction. It is held the joinder statute does not apply to cases of liability of the city for the wrongful acts of its agents, under the doctrine of respondeat superior. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L. R. A. 1915F, 797; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Editor's note to section 2029, Michie's Code of 1928.

These statutes have been recodified without change, since they were construed in the above-cited cases. Whatever doubts we might have as to the scope and intention of these statutes in the matter of joinder of parties, if their construction were of first impression, the former holdings will not now be disturbed.

The question of moment is whether the city is liable in a case of this sort.

The decedent was convicted of violating a city ordinance, and sentenced to hard labor. He was then put to work in a slag pit, digging and loading on trucks slag which was being used on the city streets. According to the complaint and evidence in support thereof, the officer in charge of the prisoner was also the foreman or superintendent in charge of this part of the street construction work, and, while acting within the scope of such employment, struck the prisoner with a pick handle, causing his death.

This is the third appeal in the case. The question was fully considered on first appeal. Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A. L. R. 89. The city was held liable. The matter was again considered, and the original decision reaffirmed on second appeal. Hillman v. City of Anniston, 216 Ala. 661, 114 So. 55.

Mindful of our statute, it is again considered by the full court anew, and our decision is "governed by what, in the opinion of the court at this time, is the law." Code, § 10287; L. & N. R. Co. v. Western Union Tel. Co., 195 Ala. 124, 71 So. 118, Ann. Cas. 1917B, 696.

Appellant takes the position that in no event does the Homicide Act apply to municipal corporations. The contention seems to be rested on the ground that the damages under such act are punitive and not compensatory. This court has ruled otherwise in another recent case. City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841.

The statute applies to "any *** corporation;" and confers the right of action "if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death." Code, § 5696.

While the statute is preventive, aims to protect life, the manner of accomplishing such purpose is to impose damages, punitive rather than compensatory, in such cases as the injured would have been entitled to recover compensatory damages if death had not ensued. We see no room for construction of such statute so as to strike out municipal corporations, to relieve them where death results, in such cases as the party would be entitled to sue for injury merely.

The question of greater difficulty is whether the law of immunity in favor of municipal corporations engaged in functions of government, such as the execution of its penal ordinances, or the law of liability for the acts of its officers or agents while engaged in a corporate enterprise, should be applied.

The rule declared in this case on former appeals has been incorporated in the text of Corpus Juris in these words (43 C.J. 967):

"Where a prisoner sentenced to work on the street or upon any enterprise corporate in character is injured by the wrongful act of the municipal agent superintending such work, the municipality is liable, although such agent was also a police officer having custody of the prisoner."

The general law on the subject is thus stated in the same text (43 C.J. 938):

"If such officer or employee is a part of the machinery for carrying on the municipal government and is at the time of the tortious act engaged in the discharge of a duty primarily resting upon the municipality in its corporate capacity and for its special benefit or advantage, he is regarded as the agent of the municipality, and the doctrine of respondeat superior will apply."

It cannot be questioned that, under the rule long established in this state, the city in the construction and maintenance of its streets, is engaged in a corporate enterprise; that whatever other relation subsists between the city and its officers, when engaged in such corporate enterprise, they act ministerially as corporate agents, and for their torts committed in the line and scope of employment the city is liable under the doctrine of respondeat superior; that the rule is the same as where the city is constructing or operating proprietary enterprises, such as public utilities. See cases cited and reviewed in Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A. L. R. 89.

In the case of Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290, the Supreme Court of Mississippi has approved and followed the views expressed in the dissenting opinions on former appeals of this case. The Mississippi case involved the manner of confinement, in shackles, while working the prisoner on the streets. Whether this differentiates the case we need not decide.

The Mississippi court cites and quotes from Nisbet v. Atlanta, 97 Ga. 650, 25 S.E. 173, noted in our former decision.

In studying the views of the Georgia court as to whether street work is governmental or corporate, we note in the case of Cornelisen v. City of Atlanta, 146 Ga. 416, 91 S.E. 415, 416, the court cites instances of governmental activities, and declares no liability attaches in such cases "as a general rule." Then proceeds:

"An exception to the general rule exists in the case of streets and sidewalks, which in the recent case of Ackeret v City of Minneapolis, 129 Minn. 190, 151 N.W. 976, L. R. A. 1915D, 1111, Ann. Cas. 1916E, 897, was referred to as, 'an illogical exception' to the general rule; but the...