City of Tuscaloosa v. Fitts

• Citation: 96 So. 771,209 Ala. 635
• Decision Date: 03 May 1923
• Docket Number: 6 Div. 868.
• Parties: CITY OF TUSCALOOSA v. FITTS.
• Court: Alabama Supreme Court

96 So. 771

209 Ala. 635

CITY OF TUSCALOOSA v. FITTS.

6 Div. 868.

Supreme Court of Alabama

May 3, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by Alston Fitts against the City of Tuscaloosa. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

S. H Sprott, of Tuscaloosa, for appellant.

Jones Jones & Van de Graaff, of Tuscaloosa, for appellee.

MILLER J.

Dr. Alston Fitts, appellee, brings this suit against the city of Tuscaloosa, the defendant and appellant, for the value of a certain piece of plate glass, about 9 by 12 feet in size, which he alleges was broken through the negligence of the driver of one of the defendant's trash wagons, while acting in the line and scope of his duties.

The plaintiff was the owner of a building in the city of Tuscaloosa, which was used as a drug store. The building did not extend back to the alley, nor did it extend to the end of plaintiff's lot; the rear of said building being about 40 feet from the alley. The buildings on each side extend back to or nearer the alley than plaintiff's building. The plate glass was crated with plank, and was leaning against the side of a building in the rear of the drug store on a vacant lot belonging to plaintiff, between the drug store and the alley, and could be seen through the cracks. It had been there for a year or two. The driver drove the wagon into the alley, backed it into the area in the rear of the drug store for the purpose of collecting trash or garbage, or both, and in so doing the wagon struck the crate of glass, smashing it.

The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court the defendant appeals. There are three counts in the complaint; demurrers to each were overruled by the court.

Count 1 avers:

"A servant, agent, or employee of defendant, while driving defendant's trash wagon in the city of Tuscaloosa, Alabama, and while engaged in and about the duties of his employment by defendant, negligently drove defendant's trash wagon upon," etc.

This is equivalent to averring, as the statute requires, that the injury was suffered through the negligence of some officer, agent, or employee of the defendant, engaged in work therefor and while acting in the line of his duty. Section 1273, Code 1907. Count 1 further avers the injury occurred while driving "defendant's trash wagon." Its purpose is not averred through any fact. Count 2 avers the injury occurred while driving defendant's "wagon and mule"; no purpose for which the wagon was used being mentioned by any fact. Count 3 avers the injury occurred "while engaged in cleaning up or taking up trash from the public streets or alleys in the city." This appears to have been done probably for the health of the public.

Under demurrer, these counts must be construed most strongly against the pleader. 10 Michie, Dig. 1005, § 22 (2). Each count, to be sufficient under demurrer, should affirmatively aver facts showing the liability of the defendant. The defendant is a municipal corporation. To it has been delegated the right to establish and maintain crematories for the destruction of garbage and like substances, either within or without the city limits, and to haul or cause to be hauled to such crematories "trash and garbage of all kinds," and cause the destruction of the same therein. Section 1282, Code 1907. These are governmental functions, delegated by the Legislature to municipalities, designed primarily to promote public health and comfort to the public as a whole, and the municipality is not liable for the torts of its agents or employees occurring while in the exercise and in the performance of that governmental function. 28 Cyc. 1305, headnote 74-75; Kuehn v. City of Milwaukee, 92 Wis. 263. 65 N.W. 1030; Harris v. Dist. of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146, 14 A. L. R. 1471; Louisville v. Hehemann, 161 Ky. 523, 171 S.W. 165, L. R. A. 1915C, 747; Johnson v. Somerville, 195 Mass. 371, 81 N.E. 268, 10 L. R. A. (N. S.) 715; Conelly v. Nashville, 100 Tenn. 262, 46 S.W. 565; McFadden v. Jewell, 119 Iowa, 321, 93 N.W. 302, 60 L. R. A. 401, 97 Am. St. Rep. 321; Ratliff v. Bessemer, 17 Ala. App. 632, 88 So. 208, headnote 2.

Each count should allege facts showing the purpose for which the wagon and mule were being used by the city's agent at the time of the injury to the glass. This purpose should be the performance of a ministerial work, and not a governmental function of the city, and it should affirmatively appear to...