City of Bessemer v. Whaley

• Decision Date: 23 April 1913
• Citation: 8 Ala.App. 523,62 So. 473
• Parties: CITY OF BESSEMER v. WHALEY.
• Court: Alabama Court of Appeals

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.

Estes, Jones & Welch, of Bessemer, for appellee.

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 above mentioned (that is, in the exercise of its purely municipal or corporate functions, 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 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 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 public purposes and the profit or advantage inures ultimately to the benefit of the public." 28 Cyc. 1263.

For instance, our Supreme Court has held that a city engaged in operating an electric light plant, if authorized thereto by its charter, is liable for the negligence of its servants in leaving an electric wire exposed with which a person came in contact and was injured. Darby v. Union Springs, 173 Ala. 709, 55 So. 889.

We have engaged in these preliminary observations in order that a clearer view and understanding may be obtained of the meaning of the recent statute enacted in this state, which fixes defines, and limits the liability of municipalities for torts. It supersedes the authority of judicial decisions, and these need not concern us, except in so far as they may be looked to as an aid in interpreting the statute. That statute (Code, § 1273) thus reads: "No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employé of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council." The present is a suit by the plaintiff (appellee here) against the city of Bessemer (appellant) for alleged injuries received as a result of slipping on a banana peeling and thereby falling to the sidewalk of said city. The complaint contains four counts. The first two are substantially the same and are based upon the alleged negligence of defendant in failing to discharge an alleged duty to plaintiff, as a pedestrian, of using due and reasonable care, skill, and diligence in watching over and keeping said sidewalk, at the place where plaintiff slipped and was injured, clear and free of refuse vegetable matter, such as banana peelings and like substances; each of said counts also alleging that defendant suffered or allowed said sidewalk to be and remain with such refuse vegetable matter, banana peelings, and like substances upon it for an unreasonable length of time prior to plaintiff's injury, and that defendant had notice of such condition of said sidewalk. The third count is predicated upon the negligent failure of the city to discharge the alleged duty to keep the sidewalk in a reasonably safe condition for the use of the traveling public in walking along the same in that for a long time prior to the date of the injury defendant permitted or allowed said sidewalk, at the place of the injury, to become dangerous as a walkway by knowingly or unlawfully maintaining at such place, or permitting to be there maintained, certain nuisances, to wit: "The daily and habitual accumulation upon said sidewalk of obstructions, such as discarded fruit peels, banana peels, decayed vegetable matter, and other loose substances, to the great danger of those using the sidewalk as a walkway, which danger was increased by reason of the fact that the surface of the sidewalk was of concrete material, smooth, and easily made slippery by...