City of Birmingham v. Whitworth, 6 Div. 267

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
PartiesCITY OF BIRMINGHAM v. WHITWORTH.
Decision Date24 January 1929
Docket Number6 Div. 267

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. [119 So. 842]

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. [119 So. 843.]

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...

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17 practice notes
  • Yeilding v. State ex rel. Wilkinson, 6 Div. 887
    • United States
    • Supreme Court of Alabama
    • 4 Abril 1936
    ...corporations engaged in a like business. Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841. See, also, 19 R.C.L. p. 691 et § 4, pp. 696, 697, §§ 8 and 9. [167 So. 589] "We are of opinion, and so hold, that there is no prerogative r......
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • 1 Mayo 1930
    ...and the completion of the construction [132 So. 13] project of their predecessors in office under the statute. Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; Hillman v. Anniston, 214 Ala. 520, 108 So. 539, 46 A. L. R. 89; Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Williams v. City ......
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • 10 Julio 1975
    ...265 Ala. 596, 93 So.2d 419 (1957). Repair and maintenance of streets is proprietary or corporate, City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841 (1929); but operating a street sweeper to keep the streets clean is governmental, Densmore v. City of Birmingham, 223 Ala. 210, 135 So......
  • State ex rel. Atty. Gen. v. Ward, 6 Div. 619
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1961
    ...not in its strict governmental capacity. Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 'It is without dispute in the evidence that the respondent city delayed fo......
  • Request a trial to view additional results
17 cases
  • Yeilding v. State ex rel. Wilkinson, 6 Div. 887
    • United States
    • Supreme Court of Alabama
    • 4 Abril 1936
    ...corporations engaged in a like business. Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841. See, also, 19 R.C.L. p. 691 et § 4, pp. 696, 697, §§ 8 and 9. [167 So. 589] "We are of opinion, and so hold, that there is no prerogative r......
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • 1 Mayo 1930
    ...and the completion of the construction [132 So. 13] project of their predecessors in office under the statute. Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; Hillman v. Anniston, 214 Ala. 520, 108 So. 539, 46 A. L. R. 89; Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Williams v. City ......
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • 10 Julio 1975
    ...265 Ala. 596, 93 So.2d 419 (1957). Repair and maintenance of streets is proprietary or corporate, City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841 (1929); but operating a street sweeper to keep the streets clean is governmental, Densmore v. City of Birmingham, 223 Ala. 210, 135 So......
  • State ex rel. Atty. Gen. v. Ward, 6 Div. 619
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1961
    ...not in its strict governmental capacity. Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 'It is without dispute in the evidence that the respondent city delayed fo......
  • Request a trial to view additional results

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