City of Mobile v. Reeves

• Decision Date: 26 June 1947
• Docket Number: 1 Div. 277.
• Citation: 31 So.2d 688,249 Ala. 488
• Parties: CITY OF MOBILE v. REEVES.
• Court: Alabama Supreme Court

31 So.2d 688

249 Ala. 488

CITY OF MOBILE v. REEVES.

1 Div. 277.

Supreme Court of Alabama

June 26, 1947

Rehearing Denied July 31, 1947. [Copyrighted Material Omitted]

Harry Seale, of Mobile, for appellant.

D. R. Coley, of Mobile, for appellee.

The complaint as amended is as follows:

'Plaintiff claims of the Defendants the sum of fifty thousand dollars damages for that heretofore and on, to-wit, the 24th day of September, 1944, the City of Mobile was a municipal corporation, in which Virginia Street was a public highway or thoroughfare; that on, to-wit, November 9th 1942, the Defendant, the City of Mobile, entered into a contract with the Defendants Carey W. George and Lorraine M. George, individually and as partners doing business as Carey W. George and Associates, in and by the terms whereof the said Carey W. George and Lorraine M. George undertook and agreed to make certain excavations, lay certain drainage lines and do certain other similar work on said Virginia Street for the considerations recited therein, and did undertake, pursuant to the provisions of said contract, to do said work; that as a part of said contract, it was agreed that the said Carey W. George and Lorraine M. George

would fill all excavations, repair, and replace pavement where removed; that notwithstanding the duty of the City of Mobile and of the Defendants Carey W. George and Lorraine M. George, they, the said Defendants, their servants or agents, acting within the line and scope of their employment, on to-wit, September 24th, 1944, negligently permitted a deep and dangerous hole or depression to be and remain in the surface of Virginia Street after the same had been thrown open to the public for travel, at a point near its intersection with McMillan Avenue, for a long and unreasonable length of time, after said Defendants knew or by the exercise of reasonable care should have known of its existence, without barrier or warning of its presence; and Plaintiff says that at said time and place Pierce L. Reeves, the plaintiff's intestate, while riding a motorcycle westwardly along Virginia Street, ran into said hole and as a result thereof was thrown violently to the pavement and was so bruised, crushed, and hurt that he died, all as a proximate consequence of the negligence of the Defendants as aforesaid; wherefore, she sues.

'And Plaintiff alleges that before bringing this suit, she did, within six months after the accident resulting in the death of Plaintiff's intestate, as aforesaid, file with the Clerk of the City of Mobile, Alabama, a sworn statement in writing stating substantially the manner in which the injury was received and the day and the time and place where the accident occurred, and stating the amount of damages claimed.'

The following charge was refused to appellant: '8. The Court charges the Jury that where there is a defect in the street of such a nature that a person traveling along the street in the exercise of ordinary care would see and appreciate the probable danger in the way chosen, and the traveler fails to choose a much safer way easily accessible and known to the traveler at the time, negligence on his part will be presumed.'

Appellant's objection to the transcript is as follows:

'Comes the City of Mobile, by and through its attorney, and objects to the transcript filed in this cause on January 27, 1947, and certified by Charles L. Rehm, official court reporter, as being true and correct, and for grounds of objection states as follows:

'During the oral argument of the attorney of the City of Mobile to the jury on the trial of this case the following transpired:

'Mr. Coley: I have sat there and heard Mr. Seale make so many statements of the law that I don't agree with that I cannot sit any longer without saying something. I don't think the Court would ever give such a charge as that; if it does, I will make no criticism of it, but it is certainly not the law.

'The Court: It is not among the charges I have given.

'Mr. Seale: All right, if the Court won't give it, but I still think it is the law. I want the record to state that it is Charge No. 8. Now, what was my statement, Mr. Coley?

'Mr. Coley: You were quoting from your memory or reading from a note on that tablet.

'Mr. Seale: I wasn't reading or quoting from anything.

'The Court: What is it you want in the record, Mr. Seale?

'Mr. Seale: I want what statement he is objecting to.

'Mr. Coley: I object to your having made in your argument a statement of law because it was improper and not the law when made and is not a correct statement of the law and misleads the jury.

'The Court: I don't think the Reporter has the remark because it is not incumbent on the Reporter to report the argument. There is no way to get it in the record.

'Mr. Seale: Yes, there is a way of getting it in the record. I except to the Court's telling me I cannot make a statement when the gentleman hasn't stated what statement he objects to, because he has to object to a particular statement and have the Reporter write it down so the Court can rule on it.

'The City of Mobile further shows unto the Court that in truth and fact what its

attorney was arguing to the jury immediately prior to Mr. Coley's objection referred to above, and what Mr. Coley objected to was in substance as follows:

'The brother officer of the deceased testified that he and the deceased had passed the alleged hole in the street on a number of occasions, that Mr. Pat Gibney, the brother officer, had seen the hole and claims to have reported it and had testified that the deceased had had as good an opportunity to observe the hole as he had, and, gentlemen, the evidence is without dispute that there were safe ways to pass on each side of the hole, and if Mr. Reeves had knowledge that the hole existed or reason to believe that it did exist from facts known to him which would put a prudent person on notice, it was his duty to use reasonable care in choosing a safe route in avoiding the hole.'

'The City of Mobile objects to the certified transcript because the statement of its attorney quoted immediately above is not contained therein, and the transcript is not complete without such statement.'

Appeal from Mobile Circuit Court.

STAKELY Justice.

Pierce L. Reeves was a motorcycle officer of the City of Mobile. While riding a a motorcycle on September 24, 1944, along Virginia Street in the City of Mobile in the discharge of his duties, he ran into a saucer like depression in the pavement of the street. The result was that he was thrown from the motorcycle and died of his injuries without recovering consciousness. Suit was instituted under the homicide act against the City of Mobile and Carey W. George and Lenoire M. George, individually and as partners doing business as Carey W. George and Associates. The court gave the affirmative charge for the George defendants. There was verdict and judgment against the City of Mobile for $20,000. Hence this appeal.

I. The George defendants were joined in the suit pursuant to the provisions of § 503, Title 37, Code of 1940. Prior to the suit they had entered into a contract with the City of Mobile to lay a sewer line and do other work along Virginia Street. According to the allegations of count 1, as amended, on which the case was tried, the George defendants agreed in the contract 'to fill all excavations, repair and replace pavement when removed; that notwithstanding the duty of the City of Mobile and the defendants Carey W. George and Lorraine M. George, they, the said defendants, their servants or agents, acting within the line and scope of their employment on to-wit September 24, 1944, negligently permitted a deep and dangerous hole or depression to be and remain in the surface of Virginia Street after the same had been thrown open to the public for travel, at a point near its intersection with McMillan Avenue, for a long and unreasonable length of time, after said defendants knew or by the exercise of reasonable care should have known of its existence, without barrier or warning of its presence.'

The demurrer to count 1 as amended was overruled. The demurrer takes the point, which is the only point stressed in argument, that there is a misjoinder of parties. It is claimed that the count does not seek to charge the George defendants with any initial negligence, but that both the city and the George defendants are charged with exactly the same breach of duty in the allegation that they 'negligently permitted a deep and dangerous hole or depression to be and remain in the surface of Virginia Street.' It is argued that the result denied the City of Mobile the right under the foregoing statute to have the George defendants joined as proper party defendants, because it is claimed that the duty of the contractor defendant grows out of original or initial negligence in the creation of the defect and not out of a duty to restore or repair the torn up street.

There can be no doubt that the negligence of the George defendants must be based upon the duty not to create the hazard in the surface of the street, while the negligence of the city in the present case must lie in the failure to remedy the defect 'after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect [on the part of the council].' City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276, 279; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1917 P. 797; § 502, Tit.37, Code of 1940.

Yet although the duty owing by these defendants respectively arises from a different source, the statute requires that the contractor defendant be joined with the city defendant....