Hudson v. Coffee County

• Court: Supreme Court of Alabama
• Writing for the Court: SHORES; EMBRY; HEFLIN; EMBRY
• 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

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.

Page 192

[294 Ala. 714] Francis H. Hare, Jr., Birmingham, for appellant.

[294 Ala. 715] 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

Page 193

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 [294 Ala. 716] 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...