Hudson v. Coffee County

• Citation: 321 So.2d 191,294 Ala. 713
• Parties: Gaston Leroy HUDSON v. COFFEE COUNTY, Alabama, etc., et al. SC 1256.
• Decision Date: 18 September 1975
• Court: Alabama Supreme Court

Page 191

321 So.2d 191

294 Ala. 713

Gaston Leroy HUDSON v. COFFEE COUNTY, Alabama, etc., et al.

SC 1256.

Supreme Court of Alabama.

Sept. 18, 1975.

Rehearing Denied Nov. 6, 1975.

Francis H. Hare, Jr., Birmingham, for appellant.

Cassady & Fuller and Rowe & Rowe, Enterprise, G. A. Lindsey, Elba, for appellees.

SHORES, Justice.

The trial court granted defendants' motion to dismiss plaintiff's complaint in which he alleged that on January 19, 1972, the defendants were in charge or control of a bulldozer and a truck (sometimes known as a 'lowboy'); that the defendants entered into an agreement regarding the use and operation of said equipment whereby the defendants leased or bailed, for a valuable consideration, said equipment for the purpose of moving dirt and making other improvements on the farm owned by the plaintiff's father.

After having completed part of the contracted work, the defendants attempted to load the bulldozer onto the lowboy to move it to another part of the farm for the purpose of performing further work.

While attempting to load the bulldozer onto the lowboy, the lowboy moved or rolled forward and ran over or struck the plaintiff causing him permanent injuries. The plaintiff claimed that the defendants were negligent in their control and operation of the bulldozer and the truck, and that they breached their contract in failing to exercise due care to provide and operate the equipment in a reasonably safe manner.

The defendants are Coffee County, its Probate Judge, Commissioners in their official and individual capacities, and agents. In granting the defendants' motion to dismiss, the trial court observed:

'A county is a governmental agency of the State and is chargeable with and liable for only those claims and demands which law imposes upon them. It can act only through agents. The agents must confine their acts within the limits of their powers in order to bind the county. The office of County Commissioner, Judge of Probate and the County Commission are creatures of the legislature. The limitation of the powers of such officers and commission is within the discretion of the legislature. If the Judge of Probate, the Commissioner, or the County Commission in the exercise of ministerial powers as agents of the county exceed the limits of their power, the acts are void. Such acts cannot be made the basis of legal liability of the county.

'A county is not liable to an individual for negligent injury sustained as a result of performance of governmental functions in the absence of a constitutional provision or statute expressly declaring liability. When the function of the county in question is proprietary in its character, and such function is authorized by law, the county is liable to suit for the negligence of its agents in the exercise of their duties.

'The plaintiff alleges in the last paragraph of its (sic, his) claim for relief that 'the defendants were then and there engaged in a proprietary function' but omits an essential element of the claim for relief. The essential element omitted is that the proprietary function was authorized by law. Therefore, the court is of the opinion the claim for relief is fatally defective and grounds of the motions to dismiss properly point out the defect.'

The court denied the motion to dismiss of each individually named defendant, in their individual capacities. This appeal is from that judgment.

This case was submitted in this court on August 6, 1975. The appellant devotes the major portion of his brief to an appeal to abolish the defense of governmental immunity in tort actions as to counties. This court did just that in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), but limited the rule of that case and to similar causes of action arising thereafter. The decision to give that case, as well as two others decided on the same date (Jackson v. City of Florence et al., 294 Ala. 592, 320 So.2d 68, and Harris v. Board of Water & Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So.2d 624, so-called quasi-prospective application was not made hastily. Although urged to do so by many amicus curiae briefs filed in opposition to applications for rehearings in those three cases, this court declined to alter their quasi-prospective application.

As sympathetic as we are with the appellant's plight, we think it would be unwise to disturb a decision so recently and carefully reached.

Therefore, we must look to the law as it existed prior to Lorence, supra. Although the majority of this court who concurred in Lorence concluded the rule of county immunity to be unjust, there is little debate about what the rule was. In so far as counties are concerned, to be distinguished from municipal corporations, there are no cases from this court holding that a county is liable for torts committed while acting in a proprietary capacity. One opinion contains language suggesting that such was the rule, assuming that there was a statute authorizing the county to perform the acts from which the tort arose. In Laney v. Jefferson County, 249 Ala. 612, 614, 32 So.2d 542, 543 (1947), which involved a wrongful death action brought against the county claiming that its agents, in the operation of a county hospital, negligently caused the death of plaintiff's intestate, the late Chief Justice Livingston said:

'While each count alleged that Jefferson County operated the Jefferson Hospital as a proprietary institution, such allegation would not be admitted if the county did not possess the legal authority so to do. A county is a 'governmental auxiliary or agency possessing no power and subjected to no duty no originating from the statute creating it.' Askew v. Hale County, 54 Ala. 639, 25 Am.Rep. 730. The question of whether the county is operating a proprietary institution is controlled by statutes which authorize it. Therefore the demurrer does not admit that the county was so engaged for that is a conclusion of law which a demurrer does not admit. . . .

'. . .

'But when the operation in question is proprietary in its character, And as such authorized by law, it is liable to suit for torts committed by its agents in the exercise of their duties as such. (Citations Omitted).' (Emphasis Supplied)

In commenting on county immunity in Alabama, Messrs. Copeland and Screws, 'Governmental Responsibility for Tort in Alabama,' 13 Ala.L.Rev., 296, 311, 312, observed:

'As a simplified proposition, a county is not civilly liable for contracts, debts, or torts where the...