City of Decatur v. Parham, 8 Div. 910

• Decision Date: 19 February 1959
• Docket Number: 8 Div. 910
• Citation: 109 So.2d 692,268 Ala. 585
• Court: Alabama Supreme Court
• Parties: CITY OF DECATUR v. Estelle PARHAM.

Page 692

109 So.2d 692

268 Ala. 585

CITY OF DECATUR v. Estelle PARHAM.

8 Div. 910.

Supreme Court of Alabama.

Feb. 19, 1959.

Julian Harris, Norman W. Harris, Philip Shanks, Jr., and John A. Caddell, Decatur, for appellant.

Powell & Powell, Decatur, for appellee.

LAWSON, Justice.

This is a suit by Estelle Parham against the City of Decatur to recover damages for personal injuries which are alleged to have resulted from an electric shock that she received on the afternoon of July 24, 1956, when her right arm came in contact with an electric hair dryer affixed to a wall in a dressing room in a bathhouse owned and maintained by the City of Decatur in connection with its operation of a municipally owned swimming pool.

The plaintiff's amended complaint, on which the cause went to the jury, consisted of six counts, numbered 1, 2, 4, 5, 6 and 7. The defendant pleaded the general issue in short by consent in the usual form. The jury found for the plaintiff on Counts 1, 2, 4 and 7. The amount of the verdict was $10,000 and judgment for that amount was rendered for the plaintiff and against the City. Its motion for a new trial having been overruled, the City appealed to this court.

The swimming pool and bathhouse were under the control and direction of the Park and Recreation Board of the City of Decatur, to which agency the City had entrusted the general supervision, operation and control of the parks, places of recreation and playgrounds owned by the City. Ordinance No 561, adopted April 3, 1950.

The City of Decatur also owned and operated an electric distribution system which was under the control and management of another agency of the City, the 'Municipal Utilities Board of Decatur, Morgan County, Alabama,' created by Local Act approved March 3, 1939. Act No. 89, Local Acts 1939, p. 47.

The Municipal Utilities Board furnished and sold electricity to the Park and Recreation Board for use in connection with the operation of the swimming pool and bathhouse. The electricity was delivered by the facilities and system under the control and management of the Municipal Utilities Board to a metering point outside the pump house of the swimming pool. From that metering point electricity was conducted to the hair dryer in the bathhouse by a wiring system which was a part of the bathhouse property and which was under the control of the Park and Recreation Board.

As shown above, the jury in its verdict specified that it found for the plaintiff on Counts 1, 2, 4 and 7. No reference was made to Counts 5 and 6, which also went to the jury. The effect of this verdict was a finding for the defendant as to Counts 5 and 6, so no further reference need be made to those counts. Central of Georgia Ry. Co. v. Corbitt, 218 Ala. 410, 118 So. 755. See Gibson v. Elba Exchange Bank, 266 Ala. 426, 96 So.2d 756.

In none of the counts of the complaint did plaintiff base her right to recover on the theory of negligence of the servants, agents or employees of the City in the construction or maintenance of the bathhouse or of any appliance therein. No recovery could have been had under such a count, for it is well established that a municipal corporation is ordinarily not liable for injuries which result from the negligent performance of a governmental function of a municipality. Parr v. City of Birmingham, 264 Ala. 224, 85 So.2d 888; City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192; Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14. And it is well established that the operation of a swimming pool and bathhouse and similar recreational facilities are governmental functions. Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908, and cases cited. The holding in the case last cited is in accord with the prevailing view. See Annotation, 'Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability,' which begins on page 1434 of 55 A.L.R.2d.

In Counts 1, 2, and 7 plaintiff bases her right to recover on allegations to the effect that either the bathhouse or the defective hair dryer installed therein was a nuisance and that the plaintiff was injured as a proximate consequence of the negligent maintenance or negligent operation of such nuisance.

Those counts were drafted, no doubt, in the light of the holding of several of our cases to the effect that a City is liable for negligently causing or creating a nuisance, whether or not in so doing it is performing a governmental function. Downey v. Jackson, 259 Ala. 189, 65 So.2d 825; City of Bessemer v. Chambers, 242 Ala. 666, 8 So.2d 163; Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320; City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446. In Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749, 750, the plaintiff sued the town for the maintenance of a nuisance--a privy kept open for public use--near his dwelling house. In the opinion in that case it was stated that 'no authority can be produced holding that negligence is essential to establish a cause of action for injuries of the character complained of here.' But our later cases are to the effect that negligence is necessary to charge the City with liability where the act complained of is carried on under legislative authority. Downey v. Jackson, supra; City of Bessemer v. Chambers, supra; City of Bessemer v. Abbott, supra. See Wheeler v. River Falls Power Co., 215 Ala. 655, 111 So. 907; § 502, Title 37, Code 1940.

In no case which has come to our attention have we held a City liable for personal injuries resulting from a nuisance negligently created or maintained in the course of the performance of a governmental function except where such injuries were caused by vile and offensive odors which emanated from an incinerator, garbage dump, trash pile or similar operation maintained by the City in close proximity to the plaintiff's place of abode. City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648. See City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. 595.

The case of Downey v. Jackson, supra, was on the equity side of the court and involved an injunction against an agency of the City of Birmingham. In City of Bessemer v. Chambers, supra, the plaintiff claimed damages resulting from the operation by the City of Bessemer of a garbage dump which the evidence tended to show 'burned throughout the day and night resulting in offensive odors and smoke blowing in and about the homes of the plaintiffs with much offense and annoyance to them. * * *' The damages there sought were for an invasion of private property rights. The same is true in the case of City of Bessemer v. Abbott, Supra, from which we quote:

'As we construe the complaint, it charges that the defendant municipality has maintained an actionable nuisance in that it has operated near plaintiff's premises an incinerator for the disposal of dead animals, garbage, and other waste materials of a noxious character, the particular forms of offense being (1) that those noxious materials have been hauled to the incinerator in open wagons so as to diffuse offensive odors; and (2) that in the operation of the plant, i. e., in the burning of this waste material, plaintiff's premises--dwelling and storehouse--were invaded by filthy and offensive smoke, vapors and odors generated thereby.'--212 Ala. 472, 103 So. 446.

In Densmore v. City of Birmingham, supra, the plaintiff sued the City to recover damages for personal injuries resulting from a collision between the automobile in which plaintiff was riding and a street sweeper. There is language in the opinion relative to our holding in City of Bessemer v. Abbott, supra [223 Ala. 210, 135 So. 321], but the opinion shows that 'no count of the complaint is expressly predicated upon the creation of a nuisance.' The conclusion reached was that the court properly sustained demurrers to all of the counts of the complaint. That case is not considered by us as extending to injuries of the kind there under consideration the rule of the Abbott case, supra.

We are not willing to entend the rule of the cases cited and from which we have quoted above to a factual situation such as is presented in this case. Before coming to that conclusion we have read cases from many other jurisdictions and in many of them is language to the effect that municipality may be found liable for injuries to the person resulting from a nuisance created or maintained by the municipality in the exercise of governmental functions, although such injuries were not caused by noxious odors, smoke or fumes blowing in and about the homes of the plaintiffs from incinerators, garbage dumps, and the like.

But these cases are so beset with qualifications, limitations and restrictions as to add only one more confusion to the classic confusion relating to distinctions between governmental and proprietary functions. The practical effect of the rule, even in jurisdictions broadly recognizing its application to cases of all types of personal injuries, is often severely limited by the circumstances and strict definition of 'nuisance' within the meaning of the rule. The reasoning of courts in refusing to apply the rule to tenuous cases of nuisance is often very similar to the reasoning of those courts which entirely withhold recognition of the rule on the ground that the accepted doctrine of immunity from torts in the exercise of governmental functions may not be evaded merely by calling negligence by another name. See 56 A.L.R.2d 1416, 1418.

The difficulty in determining whether the negligence of the City's servants becomes so outrageous as to amount to a nuisance has led the courts to some surprising conclusions. In Hoffman v. City of Bristol, 113 Conn. 386, 155 A. 499, 75 A.L.R. 1191, it was held that the erection of a diving board over shallow water in a public pool is a nuisance. Conversely, in the case of Selden v. City of Cuyahoga Falls, ...