City of Bessemer v. Whaley

• Decision Date: 11 June 1914
• Docket Number: 274
• Parties: CITY OF BESSEMER v. WHALEY.
• Court: Alabama Court of Appeals

65 So. 691

10 Ala.App. 569

CITY OF BESSEMER v. WHALEY.

No. 274

Court of Appeals of Alabama

June 11, 1914

Rehearing Denied June 30, 1914

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Mrs. S.B. Whaley against the City of Bessemer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 8 Ala.App. 523, 62 So. 473; 65 So. 542.

Goodwyn & Ross, of Bessemer, for appellant.

Estes Jones & Welch, of Bessemer, for appellee.

THOMAS, J.

On the original submission of this case we reversed and remanded the cause on the point, without considering any others raised by the record, that the lower court erred in not sustaining certain named grounds of the demurrer to the complaint, which went to the very cause of action alleged.

Such holding on our part rendered unnecessary, of course, a decision upon any of the other questions presented, since it completely disposed of the case, as will fully appear from the opinion of this court reported in City of Bessemer v Whaley, 8 Ala.App. 523, 62 So. 473. The case was subsequently certioraried to our Supreme Court, and that court has recently handed down an opinion (65 So. 542), not yet officially published, overruling and reversing in part the mentioned opinion of this court, sending us back the record for consideration and determination of the other questions involved in it.

The first of these, in order, is as to whether or not any of the other grounds of the demurrer to the complaint, other than those before considered, were good. In this connection it may be stated that the complaint joined no other party as a defendant with the city. On its face, however, it shows that another party or parties are also liable to the plaintiff for the same actionable wrong that is complained of against the city. That wrong consisted, on the part of the city, as will appear from the opinions mentioned, in knowingly suffering to exist on its sidewalk a nuisance of such character as to create a defective condition in such walk and as that the city was bound to know it was likely to result in such an injury to pedestrians traveling such walk as is here complained of. The persons who maintained that condition or nuisance--the fruit vendors mentioned in the complaint--by allowing the peelings and litter from the fruit and vegetables handled or sold by them to remain on the sidewalk at their place of business, were certainly equally as liable to the plaintiff for her injuries received from slipping on such refuse matter as was the city for suffering them to continue such condition or nuisance. Garibaldi v O'Conner, 210 Ill. 284, 71 N.E. 379, 66 L.R.A. 73; Birmingham Waterworks Co. v. Martini, 2 Ala.App. 659, 660, 56 So. 830; Archer v. Johnson City (Tenn.) 64 S.W. 474.

Section 1273 of the Code, among other things, provides:

"Whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts, or the negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured."

Section 1274, among other things, thus provides:

"The injured party, if he sues the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as a defendant or defendants to the suit, *** [but] if the injured party shall, before bringing suit, demand of the mayor of such municipality the name of such other person or persons or corporation as may be liable jointly with the said municipality to such injured party, and if such mayor fails to furnish, within ten days from the making of such demand, the name of such person or persons or corporation so jointly liable, the said injured party shall not be required to join such other person as a party defendant with said municipality in any suit brought to recover damages for such injuries."

The object of these statutory provisions was to provide a means of saving the city the necessity and inconvenience of having itself to bring suit against such other parties in order to make them respond to it for the damages, which, on account of the wrongful acts of commission or omission on their part, it was forced to pay out at the suit of an injured party. Westfield v. Mingo, 122 Mass. 100, 23 Am.Rep. 292. And, by reason of this statute, we are of opinion that where a complaint against the city shows on its face, as the one here, that parties other than the city are also liable to the plaintiff for the injury complained of, or would be liable over to the city when it is made to respond for such injuries, the complaint is demurrable unless it either joins such parties as defendants or alleges the statutory excuse for not doing so; that is, alleges that the mayor failed for 10 days after demand to furnish the names of such parties. The effect of this failure is a waiver by the city of its right to require such persons to be joined as parties defendant. The complaint here neither joined as defendants the other parties it showed on its face to be liable, nor alleged an...