Green v. City of Birmingham, 6 Div. 893.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, Justice.
Citation241 Ala. 684,4 So.2d 394
Docket Number6 Div. 893.
Decision Date22 May 1941
PartiesGREEN v. CITY OF BIRMINGHAM et al.

4 So.2d 394

241 Ala. 684

GREEN
v.
CITY OF BIRMINGHAM et al.

6 Div. 893.

Supreme Court of Alabama

May 22, 1941


Rehearing Denied Oct. 9, 1941.

Further Rehearing Denied Nov. 13, 1941. [4 So.2d 395]

[241 Ala. 685] It appears that at the time of the accident Coggins and Montgomery were police officers of the City of Birmingham, and were patrolling certain territory of the city at said time. On the occasion in question, in the night time, deceased alighted from a street car, walked around the rear thereof and was struck by the police patrol car, driven by Coggins, which was traveling in the opposite direction from that of the street car. Deceased sustained injuries from which he died.

Wm. Dowdell Denson, of Birmingham, for appellant.

[241 Ala. 686] Wm. L. Clark, of Birmingham, for appellees.

THOMAS, Justice.

The suit was against the city for wrongful death.

The court gave the affirmative charge for the defendant. This is the primary question for consideration under the rule that obtains. McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

In City of Birmingham et al v. McKinnon, 200 Ala. 111, 75 So. 487 (a case of obstructions next to sidewalk), this court held that "generally, municipal corporations are not liable for police officers' negligence; but this rule does not apply where duty to remedy or report defects is imposed upon them, in respect to which they are mere ministerial agents, for whose acts the municipality is answerable in its corporate capacity."

In City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, the suit was for extraneous substance on the sidewalk.

In City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23, 24, the injury was caused by negligence in the maintenance of the street and the court said:

"Even where a police officer is charged with the duty to remedy defects or report same to some other officer, as to such service, he is deemed a ministerial agent, for whose negligence the municipality is answerable in its corporate capacity. City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; 19 R.C.L. §§ 391 and 392.

"There is no need now to re-examine the ground on which the liability is imposed, nor to differentiate the various cases of nonliability for official action. It is part of the jurisprudence of Alabama, long established, and now recognized by statute. Code 1923, § 2029; Code 1907, § 1273."

The statute referred to (Code of 1923, § 2029, Code 1940, Tit. 37, § 502) and held a corporate matter rather than a public matter is: "No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employe of the municipality engaged in work therefor; and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in [4 So.2d 396] the streets, alleys, public ways, or buildings 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, and whenever the city or town shall be made liable to an action for damages, by reason of the unauthorized or wrongful acts, or the negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured."

[241 Ala. 687] See Brooks v. City of Birmingham, 239 Ala. 172, 194 So. 525 and Code of 1940, Title 37, § 502 and authorities.

In Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89, the suit was for street improvements, and in Robbins v. City of Sheffield, 237 Ala. 674, 188 So. 874, 875, touching the construction of an electric distribution system, the definitions of governmental and municipal functions are thus stated:

"'Governmental functions' are those conferred or imposed upon a municipality as a local agency of limited jurisdiction, to be employed in administering affairs of the state, and promoting the public welfare generally.

"When properly applied to municipalities, the term 'governmental functions' should be limited to legal duties imposed by the state upon the municipality, which the municipality may not omit with impunity but must perform at its peril. * * *

"'Municipal functions' are those granted for specific benefit and advantage of urban community embraced within a municipality's boundaries."

As we understand our cases police duties are held to be governmental. Hillman v. City of Anniston, 216 Ala. 661, 114 So. 55; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169.

Under the undisputed evidence in this case the tort was committed in the discharge of a governmental duty, act or function, and was not done in the neglect to discharge a ministerial duty of a city official. Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320.

It results from this holding that the affirmative charges requested in writing by the defendant were properly given.

The judgment of the circuit court is affirmed.

Affirmed.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.

On Rehearing.

THOMAS, Justice.

The view we entertain and announced in the original opinion (and from which we do not recede) renders unnecessary the consideration of the required notice to be given to subject the municipality to suit. That question is not considered though urged by counsel.

Appellant's counsel say that "the record on this appeal shows the appeal is prosecuted, not only against the City of Birmingham, but also, against the two defendants, Coggins and Montgomery, * * *."

Assignments of error are that "The trial court erred in overruling plaintiff's motion for a new trial;" that the verdict of the jury is unsupported by the evidence and is contrary to the evidence in the case; that the overwhelming weight of evidence is contrary to the verdict of the jury; that the evidence is insufficient to support the verdict, and that the verdict of the jury is contrary to the law of the case.

It is declared by this court that a verdict should not be allowed as supporting the judgment if it is not warranted by the evidence under the rules that obtain when the preponderance of the evidence is decidedly against the verdict so as to invoke the conviction that it is wrong and unjust. Cudd v. Bentley, 204 Ala. 586, 87 So. 85; Louisville & N. R. Co., v. Rush, 208 Ala. 516, 94 So. 577.

In addition to the aforementioned grounds of the motion for rehearing, the question of the right of appellant to a reversal of the judgment of the trial court is presented, as to the individual defendants, independently of affirmance or reversal as to the City of Birmingham.

In Stapler v. Parler, 212 Ala. 644, 103 So. 573, a general rule of joint liability is thus stated: "The general rule is that all parties participating in a wrongful act, directly or indirectly, whether as principals or as agents, or both, are jointly [4 So.2d 397] and severally liable in damages for the wrong done, where injury results."

Charge No. 68f is in the following language: "The Court charges the jury that all parties participating in a wrongful act, directly or indirectly, whether as principals or as agents, or both are jointly and severally liable in damages for the wrong done where injury results."

The appellant says as to the refusal of this charge that "The defendant Montgomery and the defendant Coggins were both in charge of the death car and operating it while in joint control thereof in the performance of the duties of their employment, those duties being identical;" [241 Ala. 688] that there could not "* * * be * * * a stronger case establishing the right of the plaintiff to have this charge given to the jury in writing." We have indicated on the original hearing that the city at such time, place, agency and agents was engaged in the discharge of a governmental function and was, therefore, not liable for the damages sought, and hence there was no error in refusing that charge as to said defendants.

For the like reason, defendant's Charges L and M were properly refused as to the city. The instruction being, "must find for the plaintiff" applies to the city as well as the agents in charge of the car. It follows that there was no error in the refusal of Charge N, which is in the following language: "The Court charges the jury if they believe the evidence in this case they must find the defendant guilty of negligence."

In following, somewhat, the line of argument employed in appellant's brief, we now consider the insistence that the trial court erred in overruling plaintiff's demurrer to Plea 13. The plea is as follows: "Plaintiff's intestate was guilty of negligence on the occasion...

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6 practice notes
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...* * *." The distinction thus made between corporate functions and governmental acts was applied in Green v. City of Birmingham et al., 241 Ala. 684, 4 So.2d 394, where police officers were merely inspecting the street for repairs, and not engaged in making such repairs. It was held that the......
  • Smith v. City of Birmingham, 6 Div. 478
    • United States
    • Supreme Court of Alabama
    • June 30, 1960
    ...function. The same rule is expressed in different language in other cases, but the meaning is the same. See Green v. City of Birmingham, 241 Ala. 684, 4 So.2d [270 Ala. 684] When Count B is construed most strongly against the pleader, it shows no more than that the alleged negligent act of ......
  • Simon v. Goodman, 6 Div. 55.
    • United States
    • Supreme Court of Alabama
    • May 20, 1943
    ...535, 10 So.2d 862. The rule of sudden emergency is well understood in this jurisdiction and was applied in Green v. City of Birmingham, 241 Ala. 684, 688, 4 So.2d 394; Hulsey v. Illinois Central R. Co., 242 Ala. 136, 5 So.2d 403. See, also, The Bywell Castle Case, L.R. 4 Prob.Div. 219, 222.......
  • Mathis v. City of Dothan, 4 Div. 923
    • United States
    • Alabama Supreme Court
    • October 31, 1957
    ...The principle is also expressed in different language in other cases, but the meaning is the same. See Green v. City of Birmingham, 241 Ala. 684, 4 So.2d The appellant relies upon the case of Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419, in which the Court held that the maintenance......
  • Request a trial to view additional results
6 cases
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...* *." The distinction thus made between corporate functions and governmental acts was applied in Green v. City of Birmingham et al., 241 Ala. 684, 4 So.2d 394, where police officers were merely inspecting the street for repairs, and not engaged in making such repairs. It was held that ......
  • Smith v. City of Birmingham, 6 Div. 478
    • United States
    • Supreme Court of Alabama
    • June 30, 1960
    ...function. The same rule is expressed in different language in other cases, but the meaning is the same. See Green v. City of Birmingham, 241 Ala. 684, 4 So.2d [270 Ala. 684] When Count B is construed most strongly against the pleader, it shows no more than that the alleged negligent act of ......
  • Simon v. Goodman, 6 Div. 55.
    • United States
    • Supreme Court of Alabama
    • May 20, 1943
    ...535, 10 So.2d 862. The rule of sudden emergency is well understood in this jurisdiction and was applied in Green v. City of Birmingham, 241 Ala. 684, 688, 4 So.2d 394; Hulsey v. Illinois Central R. Co., 242 Ala. 136, 5 So.2d 403. See, also, The Bywell Castle Case, L.R. 4 Prob.Div. 219, 222.......
  • Mathis v. City of Dothan, 4 Div. 923
    • United States
    • Alabama Supreme Court
    • October 31, 1957
    ...The principle is also expressed in different language in other cases, but the meaning is the same. See Green v. City of Birmingham, 241 Ala. 684, 4 So.2d The appellant relies upon the case of Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419, in which the Court held that the maintenance......
  • Request a trial to view additional results

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