City of Bessemer v. Brantley, 6 Div. 245

• Decision Date: 30 April 1953
• Docket Number: 6 Div. 245
• Citation: 65 So.2d 160,258 Ala. 675
• Parties: CITY OF BESSEMER v. BRANTLEY.
• Court: Alabama Supreme Court

Page 160

65 So.2d 160

258 Ala. 675

CITY OF BESSEMER v. BRANTLEY.

6 Div. 245.

Supreme Court of Alabama.

April 30, 1953.

Ling & Bains, Bessemer, for appellant.

Lipscomb & Brobston and Jas. M. Hamrick, Bessemer, and D. G. Ewing, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

The appellee, L. E. Brantley, on September 6, 1949, while walking along a public sidewalk in the City of Bessemer, Alabama, at a point where a driveway leading into the service and repair shop of Lide Motor Company, a corporation, leased to them by Harry Kartus, the owner, crosses said sidewalk, stepped into a crack or defect in the sidewalk, about two feet wide and four or five inches deep, and fell, sustaining personal injuries.

It is agreed and stipulated that on December 12, 1949, the City of Bessemer received the following claim concerning the injuries received by Brantley on September 6, 1949:

'To: City of Bessemer,

The Commission of the City of

Bessemer,

And, City Clerk.

'State of Alabama

'Jefferson County}

'Personally appeared before me the undersigned authority in and for said County, in said State, L. E. Brantley, who being first duly sworn, makes this affidavit pursuant to the provisions of Title 37, Section 504, of the 1940 Code of Alabama; and affiant says:

'That he was injured about 2:30 P.M. September 6th, 1949, on a sidewalk along 19th Street, in the City of Bessemer, Alabama, in front of Lide Motor Company, near the corner of Fifth Avenue, in said City; and that his said injury consisted of a broken or fractured right leg, and the cause of the injury was from a defective sidewalk near and adjacent to the repair shop of Lide Motor Company, at said place, and the sidewalk at said time and place was broken and had a hole in it, causing affiant to stumble, and as a proximate result his right leg was then and there fractured.

'And affiant claims that the City of Bessemer knew, or should have known of such defect in the sidewalk, and that such defect was unknown to affiant prior to his injury, and affiant claims damages of the City of Bessemer in the sum of Two Thousand Dollars ($2,000.00).

'/s/ L. S. (sic) Brantley

'Sworn and subscribed to before me this 2 day of December, 1949.

'/s/ Willie Russell

Notary Public.'

'(Seal)'

On January 6, 1950, Brantley brought suit in the Circuit Court, Bessemer Division of Jefferson County, Alabama, for damages for personal injuries against the City of Bessemer, a municipal corporation. In form, the complaint was in one count and claimed the sum of $5,000 as damages. During the progress of the trial, the complaint was amended claiming damages in the sum of $10,000. The jury returned a verdict for $7,000. The trial court on motion for a new trial by the appellant, defandant in the court below, reduced the judgment to $2,000, and the city appealed. On appeal, the appellee cross assigns as error the action of the trial court in reducing the verdict of the jury from $7,000 to $2,000.

On the day the cause was called for trial in the court below, the defendant under and by virtue of Section 503, Title 37, of the Alabama Code of 1940, filed a motion to nonsuit the plaintiff for nonjoinder of joint tort feasors. The trial court proceeded to hear evidence in support of the motion, and after a consideration of the evidence offered, overruled the defendant's motion to nonsuit the plaintiff. At the conclusion of plaintiff's testimony, the defendant refiled the motion that the plaintiff be required to add parties defendant or to suffer a nonsuit for such nonjoinder, and the trial court again overruled the motion.

A motion to nonsuit is the proper remedy when a municipality defendant desires to avail itself of the provisions of Section 503, supra, of the Code, in a case where the plaintiff has failed to join another party, who is liable with the municipality under the provisions of said section. The applicable provision of Section 503 is to the effect that, if an action be brought against a city or town alone, and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provision of said Section 503, the plaintiff shall be nonsuited unless he amends by making such party or corporation a defendant, if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately irrespective of this provision. Section 503, supra, also provides that the injured party, if he sues a municipality for damages suffered by him, shall also join such other person, or persons, or corporation, so liable as defendant or defendants of the suit, and no judgment shall be rendered against the city or town unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant, or when judgment is rendered in his favor on some personal defense. At no time before bringing the present suit did the plaintiff therein demand of the Mayor of the City of Bessemer the name of any other person, or persons, or corporations, as may be liable jointly with the said municipality to the plaintiff. When the evidence had been concluded, the defendant city moved the trial court to enter a nonsuit against the plaintiff for the nonjoinder of other parties defendants, and specifically, on the ground that the plaintiff had made no demand before bringing suit on the City of Bessemer for the names of persons jointly liable with the city, and that the evidence disclosed that others were jointly liable with the city. This motion was likewise overruled by the trial court.

The first two assignments of error present the question as to whether or not the trial court was in error in refusing to nonsuit the plaintiff for failure to join as party defendants Harry Kartus, the owner, and the Lide Motor Company, the occupant, of the building adjoining the sidewalk and over which sidewalk a driveway led into said building, the defect in said sidewalk being along said driveway.

The third assignment of error raises the question as to whether the trial court erred in refusing to nonsuit the plaintiff because of his failure to demand of the city the names of those jointly liable with the city. These three assignments, of course, depend upon whether or not the evidence was sufficient to take the case to the jury as to Harry Kartus or the Lide Motor Company, and this, in turn, depends upon the substantive law defining the rights and liabilities of owners or occupants of buildings adjoining streets and sidewalks, and more specifically, sidewalks over which driveways are constructed or maintained to, or into, said buildings. Section 503, supra, provides that:

'if an action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the suit * * * the plaintiff shall be nonsuited, unless he amends by making such party or corporation a defendant * * *.'

This means that if it is made to appear by the complaint that any person or corporation ought to be joined with the city in a suit according to Sections 502 and 503 of the Code, or if such necessity is made to appear by a plea and proof sustaining the same, or made to appear on the trial by the evidence, together with the fact that such step has not been taken, then on motion of the city, plaintiff will be nonsuited. Milner v. City of Birmingham, 201 Ala. 689, 79 So. 261.

Before proceeding to the trial of the case in the court below, the City of Bessemer interposed its motion, as above set out, and in order to meet the requirements of the statute, offered evidence before the court to support the motion. Again, at the conclusion of plaintiff's evidence, the same motion was interposed. We find no fault with this procedure to determine the question and no point is raised in that regard.

As stated in the amended complaint, the cause of action against the city was in causing, or in not removing, a dangerous condition.

It is the duty of the city to use reasonable care that no such danger shall remain in a public street where people have the right to travel, although it was caused by another. If it was not caused by another, the city is liable without the necessity of making another a party. If it was caused by another, the city has the right to have the liability of that other tested, and, if found liable also, such liability takes priority over that of the city. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276.

The evidence introduced in support of the city's motion to nonsuit the plaintiff, as well as that introduced on the trial of the main case, tended, at most to establish the following facts: The City of Bessemer constructed the sidewalk and the driveway across it at the point where plaintiff was injured. As originally constructed, for almost the entire length of the block, driveways for cars extended from the street over and across the sidewalk. About one year prior to plaintiff's injury the city constructed curbing along the street side and installed parking meters, but left the driveway here involved intact. The driveway and sidewalk were constructed by the city some twenty-five years ago. Harry Kartus owned, and the Lide Motor Company occupied, the lot and building adjoining the sidewalk where plaintiff was injured. The defective condition had existed approximately a year before the plaintiff was injured. The Lide Motor Company, or its employees, had made one or more efforts to remedy the defect, but there is no evidence tending to show that such efforts in anywise increased, enlarged, or rendered more dangerous, the defective condition of the sidewalk. The driveway entered from the street and extended over and across the sidewalk and into the building on the lot occupied by Lide Motor Company. An employee of the City of Bessemer, during the month of ...