City of Bessemer v. Chambers

• Decision Date: 14 May 1942
• Docket Number: 6 Div. 986.
• Parties: CITY OF BESSEMER v. CHAMBERS et al.
• Court: Alabama Supreme Court

8 So.2d 163

242 Ala. 666

CITY OF BESSEMER v. CHAMBERS et al.

6 Div. 986.

Supreme Court of Alabama

May 14, 1942

H. H. Sullinger, of Bessemer, for appellant.

Ross, Ross & Ross, of Bessemer, for appellees.

FOSTER Justice.

There were three suits, consolidated and tried as one, on the same proof. The pleadings in all of them were the same. They claimed damages resulting from the operation by the City of Bessemer beyond its corporate limits of a garbage dump alleging facts claiming to show the creation of a nuisance and special damage proximately resulting to plaintiff in each case. There was a verdict for each in the same amount.

We will treat the contentions made in the order as argued by appellant's counsel in brief.

Assignment of Error No. 1.

This relates to the sufficiency of count 1 presented by demurrer and on the grounds argued in brief. The point is made that this count does not allege that the operation of the dump was negligent, nor in excess of authority conferred by law, nor that it caused unnecessary injury.

The contention is that this count shows that defendant was engaged in performing a duty authorized or imposed by law which cannot be actionable though it creates a nuisance unless in performing the duty, the city either exceeded its authority or was negligent in its performance.

The contention is based on a sound principle of law. City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446. In the Abbott case, supra, the cause of action was for an alleged nuisance in the operation of an incinerator or crematory which was specifically authorized by section 2039, Code of 1923, Code of 1940, Title 37, section 496. The court held that there was no actionable right for damages caused by its operation, though it was a nuisance, unless the city exceeded its authority there conferred or performed said function negligently. This was on the theory that when an act is made lawful by legislation, it does not become an actionable nuisance, so long as such authority is not exceeded, and so long as the damage did not proximately result from negligence in performing it.

But that principle is not operative unless there was legislative authority to do the act expressed or necessarily implied by some legislative act. We have had several suits for damages from a dump heap which was alleged to be a nuisance, where no question of negligence was raised. City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. 595, certiorari denied 212 Ala. 552, 103 So. 599; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7. See, also, Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A.,N.S., 889. The question of whether the city is acting in a corporate or governmental capacity in creating the nuisance has not been controlling. Densmore v. Birmingham, 223 Ala. 210, 212, 135 So. 320; 43 Corpus Juris, page 956; 38 Amer.Jur. 312, note 5; see, also, City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020; State of New Jersey v. City of New York, 283 U.S. 473, 51 S.Ct. 519, 75 L.Ed. 1176.

The authorities which sustain liability for the creation of such a nuisance have not based it on negligence in doing so. It is said to exist irrespective of negligence,-Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749; 43 Corpus Juris 956, note 26,-unless that very act is authorized by law which prevents it from being an actionable nuisance unless negligently maintained.

But the legislature of this State has provided a limitation on the liability of a municipal corporation. Title 37, section 502, Code of 1940. Under its provisions this court observed in City of Birmingham v. Carle, 191 Ala. 539, 541, 68 So. 22, 23, L. R.A.1915F, 797, that: "The liability of municipalities for damages for injuries done or suffered is limited to two distinct classes of negligent misconduct or omission, viz.: (a) Where the wrong done or suffered was the proximate result of culpable act or omission of some agent, officer, or employe then engaged, within the line of his duty, in the municipality's service; (b) where the wrong done or suffered was the proximate result of culpable municipal omission 'to remedy some defect in the streets, alleys, public ways, or buildings, after the same (i. e., defect as defined) has been called to the attention of the council, or after the same (i. e., defect as defined) had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council."' Except as specified in (b), supra, a city is not liable for damages for injury done to another except through the "neglect, carelessness or unskillfulness of some agent, officer or employe of the municipality engaged in work therefor," unless otherwise provided by law or the Constitution. Section 235, Constitution, is not here applicable. There was here no construction or enlargment of the works, highways, or improvements of the city, but an act of its police power (Abbott case, supra), and the damages did not exist nor could they be ascertained upon the construction or enlargement of any such project, but were the result of maintenance. Meharg v. Alabama Power Co., 201 Ala. 555, 78 So. 909(2); Jones v. Jefferson County, 206 Ala. 13(2), 89 So. 174.

Count 1 alleges that this dump necessarily creates such a nuisance (though there is no neglect, carelessness or unskillfulness of an agent, etc.).

Can we add to (a) as classified in the Carle case, supra, a liability which does not arise from "neglect carelessness or unskillfulness," but because the act is...