City of Birmingham v. Whitworth

• Decision Date: 24 January 1929
• Docket Number: 6 Div. 267
• Citation: 218 Ala. 603,119 So. 841
• Parties: CITY OF BIRMINGHAM v. WHITWORTH.
• Court: Alabama Supreme Court

119 So. 841

218 Ala. 603

CITY OF BIRMINGHAM v. WHITWORTH.

6 Div. 267

Supreme Court of Alabama

January 24, 1929

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for wrongful death by J.W. Whitworth, as administrator of the estate of Curtis L. Whitworth, deceased, against the City of Birmingham. Judgment for plaintiff, and defendant appeals. Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

Sam C Tigert, of Fayetteville, Tenn., and Erle Pettus, of Birmingham, for appellee.

THOMAS J.

The trial was had upon count 6, and the general issue pleaded in short by consent.

The real insistence of appellant is that the city is not liable on the theory that in hauling material for or used in repairing and mending the street, it was engaging in or exercising a governmental function for which the city was not liable in damages, under the Homicide Act, section 5696 of the Code. This subject received a careful consideration in Hillman v. City of Anniston, 214 Ala. 522, 523, 108 So. 539, 46 A.L.R. 89, and Id., 216 Ala. 661, 114 So. 55. The conclusion there announced was that in the maintenance of public streets and sidewalks the municipality is engaged in a corporate function rather than that which is purely governmental. From the power and authority to control streets and sidewalks and to maintain the same, conferred upon municipalities (chapter 43, art. 34, § 2238 et seq.), arises the corresponding and coextensive duty in the premises, and a civil liability will result from the consequences of a default in the manner of the discharge thereof. Albrittin v. Mayor and Aldermen of Huntsville, 60 Ala. 486, 496 31 Am.Rep. 46; Cullman v. McMinn, 109 Ala. 614, 19 So. 981; City of Bessemer v. Whaley, 187 Ala. 527 65 So. 542; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874. This result follows from the declaration of the courts that the maintenance of streets is a corporate rather than a public duty, and that in so doing the officers of the municipality act in a ministerial rather than in a governmental function or agency. City of Birmingham v. Muller, 197 Ala. 554, 73 So. 30; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Selma v. Perkins, 68 Ala. 148. Some of the older cases on this point, by this court, are: Smoot v. Mayor of Wetumpka, 24 Ala. 112, 121; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am.Dec. 562; Dargan v. Mayor, etc., of Mobile, 31 Ala. 469, 475, 70 Am.Dec. 505. See, also, Meares v. Commissioners of the Town of Wilmington, 31 N.C. (9 Ired.) 73, 80, 49 Am.Dec. 412.

That is to say, that, in the discharge of the duty of maintenance of public thoroughfares by a city, the rule that a superior or employer is liable for want of skill or negligence of his agent or servant, acting in the line and scope of employment, who injures another, applies, in that he is acting in a ministerial or corporate capacity rather than in a governmental or political capacity. City Council of Sheffield v. Harris, 101 Ala. 564, 14 So. 357 (Stone, C.J.); Town of Athens v. Miller, 190 Ala. 82, 91, 66 So. 702; 43 C.J. 937, §§ 1715, 1756.

There was no error in the several rulings of the trial court presenting the foregoing established principles of liability of the municipality. The demurrer to the complaint was properly overruled, and the general affirmative charge as to count 6 as last amended was properly refused. The evidence showed that the driver of the truck was engaged in an administrative duty or function, and not in the performance of a governmental function, when he caused the injury in question. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797; City of Tuscaloosa v. Fitts, 209 Ala. 635, 638, 96 So. 771; City of Jasper v. Lacy, 216 Ala. 26, 112 So. 307; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; section 2029, Code. The case of City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518, was not followed in the foregoing authorities, nor in our recent cases of Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; Id., 216 Ala. 661, 114 So. 55.

When affirmative instructions may be given or refused is well established by our decisions, under the reasonable inferences, or lack thereof, arising from the evidence. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; John v. B.R. Co., 172 Ala. 603, 55 So. 801; Miller-Brent L. Co. v. Douglas, 167 Ala. 286, 52 So. 414; Taylor v. Lewis, 206 Ala. 339, 89 So. 581. The reasonable adverse inference that may be drawn from the evidence justified the refusal of affirmative instructions requested by defendant.

The question, "Did you have any warning or intimation of any kind that this boy was coming out from the bushes?" was objectionable as calling for the witness' conclusion or opinion about an obvious fact that was submitted to the jury for decision upon the given facts.

The defendant's driver had testified on his cross-examination, without objection: "I roomed at Mrs Langley's boarding house, and I was there the night before. I don't remember that I was drunk the night before; I was not drunk on this occasion, wasn't drinking and hadn't been drinking the night before." He was asked by plaintiff, without error: "Isn't it a fact that you were drinking or under the influence of liquor the...