Densmore v. City of Birmingham

• Decision Date: 11 June 1931
• Docket Number: 6 Div. 857.
• Citation: 135 So. 320,223 Ala. 210
• Parties: DENSMORE v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

135 So. 320

223 Ala. 210

DENSMORE v. CITY OF BIRMINGHAM.

6 Div. 857.

Supreme Court of Alabama

June 11, 1931

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for personal injuries, resulting from a collision between the automobile in which plaintiff was riding and a street sweeper, by Edward Densmore, a minor, suing by his next friend, A. Q. Densmore, against the City of Birmingham. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, for appellant.

Wilkinson Burton & Wilkinson, of Birmingham, for appellee.

FOSTER J.

We are well committed to the principle in Alabama that a municipal corporation is liable for injuries caused by the wrongful or negligent performance of its corporate or ministerial duties. City of Anniston v. Hillman, 220 Ala. 505, 126 So 169; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Selma v. Perkins, 68 Ala. 148; Smoot v. Mayor, etc., of Wetumpka, 24 Ala. 112; City of Bessemer v. Whaley, 187 Ala. 525, 65 So 542.

We are just as well committed to the further principle that it is not liable for injuries caused by the wrongful or negligent performance of its governmental functions. Williams v. Birmingham, 219 Ala. 19, 121 So. 14; City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; Kirk v. McTyeire, 209 Ala. 125, 95 So. 361.

But it is pointed out that in our case of City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446, it was held that a city may be held liable for its negligence in operating an incinerator so as to cause unnecessary offense to property owners near by. The Legislature was shown to have given authority to the city to construct and operate an incinerator. When that is done it was said that the only basis of liability was therefore an excess of such authority, or there was such negligence as to cause unnecessary injury. The question was whether it was a nuisance. It was held that what is constitutionally authorized by law cannot be a nuisance; that in respect to it the only occasion for liability is negligent injury in respect to its construction or operation; that the delegation of authority did not extend to its improper or negligent operation. Without regard to the question of whether the function of the city at the time is corporate or governmental, it cannot create a nuisance. 43 Corpus Juris, 956; Birmingham v. Ingram, 20 Ala. App. 444, 103 So. 595; Birmingham v. Prickett, 209 Ala. 79, 92 So. 7. But the act of its creation is not a nuisance per se when it is done by authority duly conferred. Such was the case of Bessemer v. Abbott, supra. See 14 R. C. L. 1128; 46 Corpus Juris, 709.

We merely cite the foregoing principles in answer to the contention that the Abbott Case, supra, is authority for the position that a city may be liable for negligence in performing its governmental functions. Neither this court nor other authority so holds, unless a nuisance is created. The difficulty usually in connection with this question is to determine whether a certain function of a city is corporate on the one hand or governmental on the other. This question has given rise to much litigation and conflict of authority.

The United States Supreme Court has held that sweeping or sprinkling the street to protect public health and comfort is not a corporate act, but a governmental function, unless the contrary appears. Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146, 16 A. L. R. 1471.

But there is conflict of authority dependent upon the question of whether the act is held to be one to protect health and comfort or to maintain the street for safe and convenient use. 5 Dillon, Municipal Corporations (5th Ed.) § 1662; 43 Corpus Juris, 972, 973; 19 R. C. L. 1128.

This court has held that when a city negligently permits an accumulation of fruit peelings, decayed vegetable matter, and other loose substance in such quantities and condition as to be a hazard to travelers, it is liable to one injured thereby when he is using due care. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542. See, also, Parsons v. Manchester, 67 N.H. 163, 27 A. 88; Connor v. Manchester, 73 N.H. 233, 60 A. 436. But that the operation of a "trash wagon" in cleaning the public streets is prima facie a health service, and for negligence in doing so, the city is not liable. City of Tuscaloosa v. Fitts, supra. And it does not create a nuisance by collecting and transporting garbage in properly enclosed receptables. Kirk v. McTyeire, supra.

In the case of Young v. Metropolitan St. R. Co., 126 Mo.App. 1, 103 S.W. 135, the St. Louis Court of Appeals took the position that in sweeping the street and dumping the refuse into piles on the street it was engaged in a governmental act, but that the piles of the débris created a hazard to traffic and in removing them it was a corporate act of maintaining the street. But the Supreme Court of that state, in Cassidy v. St. Joseph, 247 Mo. 197, 152 S.W. 306, thought the distinction too narrow and technical to constitute a reliable rule of action.

Counts 1, 2, 3, 4, 5, and 6 show no more than an effort to keep the streets clean as a sanitary or health measure. The amended counts allege, in...