City of Bessemer v. Whaley

CourtAlabama Court of Appeals
Writing for the Court[8 Ala.App. 525] THOMAS, J.
Citation8 Ala.App. 523,62 So. 473
PartiesCITY OF BESSEMER v. WHALEY.
Decision Date23 April 1913

62 So. 473

8 Ala.App. 523

CITY OF BESSEMER
v.

WHALEY.

Court of Appeals of Alabama

April 23, 1913


Rehearing Denied May 14, 1913

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.

Goodwyn & Ross, of Bessemer, for appellant.

[8 Ala.App. 524] Estes, Jones & Welch, of Bessemer, for appellee.

[8 Ala.App. 525] THOMAS, J.

The general rule, established by judicial decision, for measuring the liability and immunity of municipal corporations to and from civil actions for torts is thus clearly and succinctly stated in 28 Cyc. p. 1257, where the authorities are collated, to wit:

"A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold functions and duties. The one class of its powers is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it, as a governmental agency, for the welfare and protection of its inhabitants or the general public; the other relates only to special or private corporate purposes, for the accomplishment of which it, like private corporations, acts, not through its public officers as such, but through agents or servants employed by it. In the former case its functions are political and governmental and no liability attaches to it at common law, either for nonuser or misuser of the power or for the acts or omissions on the part of its officers or the agents through whom such governmental functions are performed or the servants employed by such agencies. In its second character [62 So. 474] above mentioned (that is, in the exercise of its purely municipal or corporate functions, [8 Ala.App. 526] or the doing of those things which relate to special or private corporate purposes), the corporation stands upon the same footing with a private corporation, and will be held to the same responsibility with a private corporation for injuries resulting from its negligence, and will be liable for the torts of its officers, agents, or employés acting within the scope of such municipal power, or of the servants employed by such officers." See, also, Goodwin v. Reidsville (N.C.) 76 S.E. 233, giving instances of liability and nonliability. "The principal difficulty which courts have experienced has been in ascertaining, clearly and accurately, the line of demarcation between public or governmental duties and private or corporate duties, and not in the determination of the question whether, for the refusal to discharge a public duty, or the manner in which it is discharged, the corporation is or is not liable." See, also, Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507.

As instances of the application of this doctrine of the nonliability of municipal corporations for failure to discharge a public duty, or for negligence in its discharge, our Supreme Court have held that a city is not liable for failure to abate a nuisance (Davis v. Montgomery, 51 Ala. 139, 23 Am.Rep. 545); nor for failure to protect a citizen from the violence of a mob, although the police by diligent discharge of duty could have done so (Campbell v. Montgomery, 53 Ala. 527, 25 Am.Rep. 656); nor for the negligence of a police officer in killing a slave, while the former was engaged in an attempt to arrest another person ( Dargan v. Mobile, 31 Ala. 471, 70 Am.Dec. 505); nor for negligent failure to provide a fireman, employed by it in the maintenance of a fire department, a safe equipment with which to work (Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 [8 Ala.App. 527] Ann.Cas. 507). However, if the public duty is expressly or impliedly enjoined by statute upon the municipality (that is, the discharge of it is not left discretionary with it), the city is liable for a failure to discharge the duty, although it is one of a public character. For instance, where a statute or the charter of a city imposes upon it the duty of keeping its streets in repair, it is liable to one who has sustained injury as a result of its neglect to do so. Smoot v. Wetumpka, 24 Ala. 117; Albrittin v. Huntsville, 60 Ala. 486, 31 Am.Rep. 46; City of Selma v. Perkins, 68 Ala. 145. It has been also held that even where a public duty is not imposed by statute, but left discretionary with the municipality, yet, if the discretion or legislative judgment is exercised in favor of executing the power conferred by the charter, then in the mere execution of the work or maintenance of the institution, devised and constructed in pursuance of such legislative and judicial action, the agents and employés of the city act ministerially and the municipality is liable for injuries sustained as the result of their negligence in the performance of such ministerial powers. Bowden v. Kansas City, 69 Kan. 587, 77 P. 573, 66 L.R.A. 181, 105 Am.St.Rep. 187, 1 Ann.Cas. 955; Montgomery v. Gilmer, 33 Ala. 130, 70 Am.Dec. 562; Birmingham v. Starr, 112 Ala. 104, 20 So. 424; Sheffield v. Harris, 101 Ala. 569, 14 So. 357. But see Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507.

"Among the private or corporate acts for negligence in the performance of which on the part of its officers or agents a municipality is held liable, are acts which have relation to the management of the corporate or private concerns of a municipality, from which it derives special or immediate profit or advantage as a corporation, or for the acts or negligence in the exercise of [8 Ala.App. 528] corporate powers and duties for the peculiar benefit of the corporation in its local or special interest, which, of course, includes the management of property for private gain, or the engaging in any profit-making enterprise, although the property may be used partly for...

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8 practice notes
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • July 10, 1975
    ...acted, the Court of Appeals had occasion to consider what the impact of the legislation was to be. In City of Bessemer v. Whaley, 8 Ala.App. 523, 531, 62 So. 473, 475 (1913), speaking through Judge Thomas, that court '. . . The character of 'work' to which the statute has reference is work ......
  • City of Decatur v. Parham, 8 Div. 910
    • United States
    • Supreme Court of Alabama
    • February 19, 1959
    ...v. City of Athens, 229 Ala. 149, 155 So. 551; City of Birmingham v. Lake, 243 Ala. 367, 10 So.2d 24; City of Bessemer v. Whaley, 8 Ala.App. 523, 62 So. What are the duties owed by a private power company to its customers relative to furnishing of electricity for the operation of electric ap......
  • City of Bessemer v. Whaley, 274
    • United States
    • Alabama Court of Appeals
    • June 11, 1914
    ...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. [10 Ala.App. 570] Goodwyn & Ross, of Bessemer, for appellant. Estes, Jones & Welch, of Bessemer, for appe......
  • Grantland v. State
    • United States
    • Alabama Court of Appeals
    • May 20, 1913
    ...for his wife," etc. It is never permissible for a witness to testify to his mental state--his uncommunicated motives or intention. [62 So. 473.] These are matters of inference to be drawn by the jury from all the facts and circumstances of the case. Fonville v. State, 91 Ala. 39, 8 So.......
  • Request a trial to view additional results
8 cases
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • July 10, 1975
    ...acted, the Court of Appeals had occasion to consider what the impact of the legislation was to be. In City of Bessemer v. Whaley, 8 Ala.App. 523, 531, 62 So. 473, 475 (1913), speaking through Judge Thomas, that court '. . . The character of 'work' to which the statute has reference is work ......
  • City of Decatur v. Parham, 8 Div. 910
    • United States
    • Supreme Court of Alabama
    • February 19, 1959
    ...v. City of Athens, 229 Ala. 149, 155 So. 551; City of Birmingham v. Lake, 243 Ala. 367, 10 So.2d 24; City of Bessemer v. Whaley, 8 Ala.App. 523, 62 So. What are the duties owed by a private power company to its customers relative to furnishing of electricity for the operation of electric ap......
  • City of Bessemer v. Whaley, 274
    • United States
    • Alabama Court of Appeals
    • June 11, 1914
    ...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. [10 Ala.App. 570] Goodwyn & Ross, of Bessemer, for appellant. Estes, Jones & Welch, of Bessemer, for appe......
  • Grantland v. State
    • United States
    • Alabama Court of Appeals
    • May 20, 1913
    ...for his wife," etc. It is never permissible for a witness to testify to his mental state--his uncommunicated motives or intention. [62 So. 473.] These are matters of inference to be drawn by the jury from all the facts and circumstances of the case. Fonville v. State, 91 Ala. 39, 8 So.......
  • Request a trial to view additional results

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