City of Bessemer v. Whaley

• Decision Date: 14 May 1914
• Docket Number: 656
• Citation: 65 So. 542,187 Ala. 525
• Parties: CITY OF BESSEMER v. WHALEY.
• Court: Alabama Supreme Court

65 So. 542

187 Ala. 525

CITY OF BESSEMER v. WHALEY.

No. 656

Supreme Court of Alabama

May 14, 1914

Certiorari to Court of Appeals.

Petition by S.B. Whaley to review by certiorari a judgment of the Court of Civil Appeals (8 Ala.App. 523, 62 So. 473) reversing and remanding a judgment of the trial court in the case of the City of Bessemer v. S.B. Whaley. Certiorari awarded, judgment of the Court of Appeals reversed, and cause remanded to that court.

Estes Jones & Welch, of Bessemer, for appellant.

L Herbert Etheridge and Goodwyn & Ross, all of Bessemer, for appellee.

SAYRE J.

Petition for certiorari to review the judgment of the Court of Appeals. The question at issue is raised by demurrer to the complaint, and may be found stated in 8 Ala.App. 523, 62 So 473, et seq.

There can be no doubt, upon a just construction of the Municipal Code Law (chapter 32 of the Code of 1907), that the exclusive power and authority to control streets, including sidewalks, and keep them in repair, has been conferred upon the municipal corporations of this state. From this power and authority a corresponding and coextensive duty must be inferred, and as well civil liability for the consequences of default therein. These implications appear to rest upon the theory that the duty to keep in repair is a corporate rather than a public duty, which is discharged by a governmental agency of the state. The doctrine is apparently anomalous, but it may be explained by reference to the considerations that streets in cities and towns have peculiar and local uses distinct from the highways of the state, and the duty of the municipal authorities in respect to keeping them in repair is intrinsically ministerial. At any rate, the authorities establish the rule of implied duty in such cases, its practical operation is just, and it must be deemed settled in the law of this country. These observations are drawn from Judge Dillon's work on Municipal Corporations (section 1687 et seq.), where the subject of municipal civil liability in respect of defective streets is treated and many adjudged cases are cited. Such has long been the law of this state. Albrittin v. Huntsville, 60 Ala. 486, 31 Am.Rep. 46; Cullman v. McMinn, 109 Ala. 614, 19 So. 981.

Besides the general doctrine on the subject, the duty and liability of municipal corporations is recognized by necessary implication in section 1273 of the Code. That section provides that:

"No city or town shall be liable for damages for injury done to or wrong suffered by any person *** unless," inter alia, "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," etc.

We find no reason for supposing that so much of this section as we have quoted changes the previously prevailing law in respect of cases falling within its purview. Nor does it undertake to define a defect.

Failure by a municipality to exercise its charter powers to abate nuisances, broadly speaking, does not give a person injured thereby a private action against the corporation; but when the nuisance is a defect in the street, rendering it unsafe for travel in the ordinary modes, the case falls within the principle first above stated. Davis v. Montgomery, 51 Ala. 139, 23 Am.Rep. 545; Campbell v. Montgomery, 53 Ala. 527, 25 Am.Rep. 656; 4 Dill.Mun.Corp. § 1628.

So then, the further question to be considered is whether the complaint shows negligence in permitting a defective condition of the sidewalk. "The law does...