City of Bessemer v. Whaley, 656

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
Citation65 So. 542,187 Ala. 525
PartiesCITY OF BESSEMER v. WHALEY.
Docket Number656
Decision Date14 May 1914

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
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43 practice notes
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...191 Ala. 539, 68 So. 22, L.R.A.1915F, 797, is among the many authorities cited. That decision is rested upon City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542. The rule announced in the Carle case, supra, has been followed. A later observation of this court on the subject is found in Bir......
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • July 10, 1975
    ...was 'intrinsically ministerial,' Page 72 since they have peculiar and local uses, [294 Ala. 597] saying in City of Bessemer v. Whaley, 187 Ala. 525, 527, 65 So. 542 '. . . These implications appear to rest upon the theory that the duty to keep in repair is a corporate rather than a public d......
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • May 30, 1980
    ...corresponding and coextensive duty and therefore a civil liability for the consequences of a default therein. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23;......
  • Green v. City of Birmingham, 6 Div. 893.
    • United States
    • Supreme Court of Alabama
    • May 22, 1941
    ...are mere ministerial agents, for whose acts the municipality is answerable in its corporate capacity." In City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, the suit was for extraneous substance on the sidewalk. In City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23, 24, the injur......
  • Request a trial to view additional results
43 cases
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...191 Ala. 539, 68 So. 22, L.R.A.1915F, 797, is among the many authorities cited. That decision is rested upon City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542. The rule announced in the Carle case, supra, has been followed. A later observation of this court on the subject is found in Bir......
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • July 10, 1975
    ...was 'intrinsically ministerial,' Page 72 since they have peculiar and local uses, [294 Ala. 597] saying in City of Bessemer v. Whaley, 187 Ala. 525, 527, 65 So. 542 '. . . These implications appear to rest upon the theory that the duty to keep in repair is a corporate rather than a public d......
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • May 30, 1980
    ...corresponding and coextensive duty and therefore a civil liability for the consequences of a default therein. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23;......
  • Green v. City of Birmingham, 6 Div. 893.
    • United States
    • Supreme Court of Alabama
    • May 22, 1941
    ...are mere ministerial agents, for whose acts the municipality is answerable in its corporate capacity." In City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, the suit was for extraneous substance on the sidewalk. In City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23, 24, the injur......
  • Request a trial to view additional results

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