City of Birmingham v. Hawkins

• Decision Date: 20 April 1916
• Docket Number: 6 Div. 281.
• Citation: 196 Ala. 127,72 So. 25
• Parties: CITY OF BIRMINGHAM v. HAWKINS.
• Court: Alabama Supreme Court

72 So. 25

196 Ala. 127

CITY OF BIRMINGHAM v. HAWKINS.

6 Div. 281.

Supreme Court of Alabama

April 20, 1916

Rehearing Denied June 1, 1916

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by L.D. Hawkins against City of Birmingham and another. Judgment for plaintiff, and defendant city appeals. Transferred from Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. Reversed and cause remanded.

Romaine Boyd and M.M. Ullman, both of Birmingham, for appellant.

Allen Bell & Sadler, of Birmingham, for appellee.

MAYFIELD J.

Appellee sued appellant city and one J.B. Palmer to recover damages for injuries inflicted upon plaintiff's minor son. The injuries were inflicted in consequence of an automobile or a motorcycle, which was being driven by the defendant Palmer striking or running over plaintiff's son. The boy, at the time of the injury, was playing in one of the public streets of the city of Birmingham. Palmer, by order of the desk sergeant of the police department of the city of Birmingham was driving the automobile from the city hall, in Birmingham proper, to a substation of the police department situated in West End, Birmingham; and his mission was the carrying of a bicycle used by the police department from one station to the other. The city claimed, and renews its claim here, that Palmer was one of its policemen, and at the time and on the occasion of the injury was engaged in the performance of a part of his official duties as such policeman; that the employment and use of policemen is one of a city's governmental functions, as distinguished from its corporate or business functions; and that for the acts of a policeman such as are here shown and complained of a municipality is not liable. This issue was attempted to be raised by the pleadings, but it was not raised in such sort that it can be treated on this appeal. Appellee claims that the evidence does not show without dispute that Palmer was a police officer and in the discharge of his police duties at the time and on the occasion in question. The evidence does show without dispute, however, that the automobile and the bicycle were owned or controlled by, and used in the business of, the police department of the city, and that they were being transported at the time and on the occasion of the injury from one station to another, by order and under direction of the police department, and that Palmer was there and had been commissioned or authorized to act as policeman of that department of the city government. Under this state of facts if the question was properly raised and presented, we would have to hold, under a long line of decisions and most all of the authorities on the subject, that the city would not be liable for the injury inflicted on account of the negligence or wanton injury of which plaintiff complains. However, as the case must be reversed, and the evidence may be different on another trial, we decline to now pass upon the question of liability of the city vel non. The city and Palmer were sued jointly; and when the case was submitted to the jury it was agreed between the parties that, if a verdict was returned in their absence, it could or should be put in proper form. The jury returned with a verdict for plaintiff as against both defendants for $50 against each separately.

The motion for a new trial as to the return, reception, and change, of the verdict by the jury and the court, contains the following recitals, and the bill of exceptions states that those recitals are admitted to be true:

"Because at the time the jury returned the verdict in said cause, this court was not in session, and the jury returned a verdict in the following words, to wit: 'We, the jury, find for the plaintiff and assess his damages against the city of Birmingham in the sum of fifty dollars and against J.B. Palmer in the sum of fifty dollars. Robert E. Terry, Foreman.' And thereupon the said jury was disbanded, which said verdict was returned and delivered to the bailiff on the afternoon of the 29th of October, 1914, and on the morning of the 30th day of October, 1914, said verdict was delivered to the trial judge, who thereupon entered upon the trial docket in said cause the verdict of the jury in the exact language as returned, and the plaintiff in said cause thereupon in open court insisted that the entry of said verdict on the record should be changed so as to read, 'We, the jury, find for the plaintiff and assess his damages at one hundred dollars.' And the defendants further show that, in the absence of the defendants and in the absence of the defendants' counsel, but after the notice to the defendants' counsel as hereinafter stated, the court interrogated the members of the said jury as to what their intentions were in returning said verdict, and the court, acting upon information received from said jury, and the wording of the verdict, thereupon erased from the trial docket the original entry of said verdict and substituted in lieu thereof the entry in the following words: 'October 30, 1914. Verdict and judgment for the plaintiff for one hundred dollars.' And the defendants further show that the honorable Chas. W. Ferguson, presiding judge at said trial, after the said jury had been disbanded and had been relieved of further consideration of said cause, and after counsel for the defendants and the defendant had departed from the court, on, to wit, the 30th day of October, 1914, and about five minutes before the jury were interrogated, instructed the clerk of said court to call the defendants' counsel over the telephone and request him to come into court as the court desired to interrogate the members of the jury which had theretofore tried said cause as to the meaning of their verdict, and the clerk did thereupon communicate with defendants' counsel over the telephone and impart said information, and the defendants' counsel stated to said clerk that he was engaged at that moment and could not come to court before fifteen or twenty minutes and requested the said clerk to so inform the court and ask him to wait until the defendants' counsel could be present in court and object to any such procedure, and the clerk of said court thereupon imparted said information to the court, at which time the jury

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