City of Mobile v. Lartigue

Decision Date25 March 1930
Docket Number1 Div. 886.
Citation23 Ala.App. 479,127 So. 257
PartiesCITY OF MOBILE ET AL. v. LARTIGUE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by William A. Lartigue against the City of Mobile and John R. Peavy. From a judgment for plaintiff, defendants appeal.

Affirmed.

In action for damages sustained when city attempted to drain airport and caused water to be discharged on plaintiff's field in much greater quantities than natural flow, admitting plaintiff's evidence to effect that, after flooding of bean patch, city constructed another ditch, held not error.

The following charges were refused to defendants:

"8. The court charges the jury that while the defendants in this case had no right by ditches or otherwise, to cause water to flow on the lands of the plaintiff, which in the absence of such ditches would have flowed in a different direction, yet as to the water theretofore accustomed to flow on the lands of the plaintiff, the defendants were not bound to remain inactive. They might so ditch the aviation field as to drain it, provided they did so with a prudent regard for the welfare of the plaintiff, and provided they did no more than concentrate the water and cause it to flow more rapidly and in greater volume on the plaintiff's lands."
"17. The court charges the jury that if the defendants, in making a reasonably necessary improvement of its aviation field, and acting with prudent regard for welfare of plaintiff, dug a draining ditch, causing surface water to drain upon plaintiff's land to his damage, that you cannot find for the plaintiff unless you reasonably believe from the evidence the defendants caused water to drain upon plaintiff's land which otherwise would have drained in a different direction."

C. "The court charges the jury that if you find from the evidence that the defendant dug the ditch in making a reasonably necessary improvement of the aviation field, and did so with a prudent regard for the welfare of the plaintiff, and as a result only surface waters which naturally drained over the plaintiff's bean field was collected and discharged into a single channel and in much greater quantities, causing the plaintiff more damage, you cannot find for the plaintiff."

Charge 7 is the same as charge 8.

Defendants excepted to the following portion of the oral charge:

"He alleges that due to the change of a natural course of water that ordinarily would have drained over his bean field, the said change having been made by the defendants by digging ditches, so as to cause a change in the course of the natural rainfall-that that caused his land to be flooded and his bean crop thereby to be destroyed, whereas, but for his change in the topography of the land that there would have been no inundation of his bean crop, or destruction thereof, as a result of rainfall, and if the evidence reasonably satisfies you that that was the cause of his bean crop being destroyed, should you find that was the cause of his bean crop being destroyed, should you find that he had a bean crop and that it was destroyed, then you should find for the plaintiff against both defendants."

On redirect examination plaintiff propounded the following question to his witness Jeanne Dunklin: "After this flooding was there any change made in the ditching?"

The court overruled defendants' objection to the question, and the witness answered:

"Yes, sir, they dug another ditch through the field after the beans had been drowned out." Motion to exclude the answer was overruled.

Vincent F. Kilborn, of Mobile, for appellants.

Robert T. Ervin, Jr., and Pillans, Cowley & Gresham, all of Mobile, for appellee.

RICE J.

William A. Lartigue owned or leased property adjacent to the municipal airport of the city of Mobile, and sued the city of Mobile and John R. Peavy, a city engineer, for damages, claiming in short that, although the lands in his possession were lower than the airport, so that the surface water drained naturally from the airport over his ground, the city, in attempting to drain the airport, had caused water to be discharged upon his field in much greater quantities than the natural flow of the water from the dominant to the servient tenement, with the result that a crop of snap beans which the plaintiff had was ruined, when ready for market.

The suit was tried by a jury in the circuit court of Mobile county, resulting in a judgment for the plaintiff against both defendants for $350 damages, and from this judgment they each prosecute the present appeal and separately assign errors.

The city of Mobile, prior to the happening of the matters out of which this lawsuit grows, had set up and was operating the municipal airport some three miles south of the city of Mobile. In and about the operation of this airport, the city of Mobile dug certain ditches. In the employ of the city of Mobile was the defendant John R. Peavy, and it was he who, as such engineer, directed the digging of the ditches and the location of them; and it was these ditches which were alleged to have caused appellee's injuries.

Earnest insistence is made here that the city of Mobile, in operating the airport, was engaged in the performance of what is known as a "governmental function," and hence not liable in damages for the torts, or negligent acts, of its agents or servants, acting in or about the operation of same.

It is thought by us that the distinction between so-called "governmental" acts, for negligence in the doing of which municipal corporations are not liable, and so-called "corporate" or "ministerial" acts, for negligence in the doing of which municipal corporations are liable after the same manner of private corporations or private persons, may be stated thus: Those acts which are done by a municipal corporation in the exercise of powers for the benefit of the people generally, as an arm of the state, enforcing general laws made in pursuance of the general policy of the state, are "governmental" acts, from the negligent manner of doing which no liability flows; while those acts which are done in the exercise of the powers of the municipal corporation for its own benefit, or for the benefit of its citizens alone, or the citizens of the municipal corporation and its immediate locality, are corporate or ministerial actions which are governed by the same rules that govern private corporations.

Within the first group, and illustrating its thought, are acts done in policing, in furtherance of the public health and safety (as the maintenance of hospitals, pest houses, and the like), in the operation of parks or recreation centers, in maintaining charitable institutions, and in maintaining penal institutions. For acts done in any of these capacities, no liability arises.

Illustrations of the second branch are acts done with reference to public streets, waterworks, light plants, sewers, ditches, and like public utilities.

The authorities we cite enable a statement of the rule and illustrate both branches, to wit: Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; Hillman v. Anniston, 214 Ala. 522, 108 So. 539, 46 A. L. R. 89; Lampton v. Wood, 199 Ky. 250, 250 S.W. 980; Sisco v. Huntsville (Ala. Sup.) 124 So. 95; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; Eufaula v. Simmons, 86 Ala. 515, 6 So. 47; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Twyman's Adm'r v. Frankfort, 117 Ky. 518, 78 S.W. 446, and see opinion at 446, 447, 64 L. R. A. 572, 4 Ann. Cas. 622.

In the Eufaula and the Cullman Cases cited just above, actions were sustained against municipal corporations for flooding the lower tenement in contravention of the law of dominant and servient tenements.

An examination of the authorities just cited, and the numerous cases cited in the opinions in those decided by our own Supreme Court, will reveal that we have had numerous cases in Alabama against cities for alleged tortious conduct, when the liability of the city depended upon the question of whether it was then engaged in a corporate function, or a public and governmental function, holding-in line with what seems to be everywhere the law-that it is liable when engaged in a corporate function and not liable when engaged in a public and governmental function. We do not seem to have had a case in Alabama when the acts in question related to the operation of a municipal airport. Indeed, we have been unable to find one in the reports of any of the states.

True, we have found a few adjudications bearing upon the general subject of the operation of airports by municipalities-and at least one of these would seem to indicate that the court rendering the decision in the case would hold, if it did not therein hold, that the city, in the operation of the airport, was engaged in the performance of a "governmental act." City of Wichita v. L. W. Clapp et al., 125 Kan. 100, 263 P. 12, 14, 63 A. L. R. 478. But, as indicated by the learned annotater, who wrote the note appended to the report of this case in 63 A. L. R. page 484, the decision is somewhat "unique." At any rate, we do not consider it directly opposed to the holding we shall presently announce; and, if it were, we would not be persuaded thereby that we were in error.

Another case that would seem to indicate that the court rendering the decision holds to a view, on the particular question we are discussing, different from our own, is that of Dysart v. City of St. Louis (Sup. Ct. of Missouri) 11 S.W.2d 1045, 62 A. L. R. 762. We may make the same comment on this case that we have made hereinabove on the Wichita v. Clapp Case.

If there is an apposite decision of the...

To continue reading

Request your trial
23 cases
  • Van Gilder v. City of Morgantown, CC746
    • United States
    • Supreme Court of West Virginia
    • February 4, 1952
    ...Mollencop v. City of Salem, 139 Or. 137, 8 P.2d 783, 83 A.L.R. 315; Blue v. City of Union, 159 Or. 5, 75 P.2d 977; City of Mobile v. Lartigue, 23 Ala.App. 479, 127 So. 257; McLaughlin v. City of Chattanooga, 180 Tenn. 638, 177 S.W.2d 823. On this point the statement in 6 Am.Jur., (Rev.Ed.),......
  • Stack v. Stack
    • United States
    • Alabama Court of Civil Appeals
    • February 11, 1994
    ...of the Supreme Court on a question presented, we are bound thereby and cannot "choose our own path." City of Mobile v. Lartigue, 23 Ala.App. 479, 482, 127 So. 257, 260 (1930); see also Glass v. Hinde, 504 So.2d 316 (Ala.Civ.App.1987). The "any evidence" standard of review set out in Simpson......
  • Rhodes v. City Of Asheville, 162.
    • United States
    • United States State Supreme Court of North Carolina
    • March 23, 1949
    ...of Salem, 139 Or. 137, 8 P.2d 783, 83 A.L.R. 315; Coleman v. City of Oakland, 110 Cal.App. 715, 295 P. 59; City of Mobile v. Lartigue, 23 Ala.App. 479, 127 So. 257; Fixel on The Law of Aviation, 3d ed. 1948, p. 198; Aviation Accident Law by Rhyne, 1947, p. 149. In the case of Abbott v. City......
  • Wendler v. City of Great Bend
    • United States
    • United States State Supreme Court of Kansas
    • September 27, 1957
    ...a municipality to be in its proprietary capacity are: Peavey v. City of Miami, 1941, 146 Fla. 629, 1 So.2d 614; City of Mobile v. Lartigue, 1930, 23 Ala.App. 479, 127 So. 257; Brummett v. City of Jackson, 1951, 211 Miss. 116, 51 So.2d 52; Godfrey v. City of Flint, 1938, 284 Mich. 291, 279 N......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT