Jackson v. City of Florence

CourtSupreme Court of Alabama
Citation320 So.2d 68,294 Ala. 592
PartiesCecil D. JACKSON v. The CITY OF FLORENCE, a Municipal Corportion, et al. SC 934.
Decision Date10 July 1975

C. A. Poellnitz, Florence, for appellant.

Arnold Teks, Florence, for appellees.

Drayton N. Hamilton, Montgomery, for Alabama League of Municipalities, amicus curiae.

SHORES, Justice.

This is an appeal from a judgment of nonsuit occasioned by the trial court's sustaining the defendant city's demurrer and motion to dismiss the plaintiff's complaint. The trial court specified the grounds upon which the demurrer was sustained, saying:

'. . . The court is of the opinion that the demurrer is due to be sustained under the doctrine of municipal immunity from liability for injuries inflicted by an agent of the municipality acting in a governmental capacity which is well established by the opinions of the Supreme Court of Alabama . . .'

The complaint claimed damages against the City of Florence and a police officer for personal injuries sustained by the plaintiff as a proximate result of the negligence and wantonness of the police officer acting in the line of duty. It was alleged that the police officer, while engaged as a police officer of the City of Florence, negligently assaulted (Count I) and willfully or wantonly assaulted (Count II) the plaintiff, an unarmed, seventy-five-year-old, 130-pound man by the use of excessive force, resulting in the plaintiff's loss of his right eye. In his claim, filed pursuant to Title 37, §§ 476 and 504, Code, the plaintiff asserted:

'On August 1, 1972, I was arrested at The Shanty Restaurant on South Court Street in Florence, Alabama, by Florence City Police Officers, Grady Smith and Lee Short, at approximately 6:55, p.m.

The named officers took me to the police station at the City Hall in Florence, Alabama, where I was escorted into a small room by the two named officers. Then and there City police officer, Grady Smith, struck me in the face on or near my right eye, rendering me momentarily unconscious, and inflicting serious injuries to my right eye and face. I was neither permitted to seek medical attention by said officers for said injuries nor was any attempt made by said officers to get medical attention for me. Immediately following the said assault on me, I was taken by these officers upstairs in the said City Hall and put in a jail cell and kept there until the following morning, viz., August 2, 1972.

'While in the jail cell and during the night of August 1, 1972, and the morning of August 2, 1972, I repeatedly requested to be taken to a doctor to get medical attention for my eye. Notwithstanding my repeated requests, I was not taken to a doctor until around 7:30 on the morning of August 2, 1972, at which time I was driven by City police officers to the Eliza Coffee Memorial Hospital in Florence, Alabama, and carried to the emergency room. Dr. Shaler Roberts of the Florence Clinic was called in to examine my eye and found that it was damages to such an extent that the eye had to be immediately removed.'

Appellant acknowledges, as indeed he must, that this is a 'head-on' request for a re-examination and reconsideration of the broad question of whether Alabama municipal corporations should continue to enjoy immunity from liability for the wrongful acts of their agents acting within the line and scope of their employment. More specifically, he seeks a re-evaluation of this court's construction of Title 37, § 502, Code. He further admits that, for him to prevail, this court must overrule a long line of cases including, but not limited to, Chaffin v. City of Montgomery, 273 Ala. 492, 142 So.2d 267 (1962); McSheridan v. City of Talladega, 243 Ala. 162, 8 So.2d 831 (1942); and McCarter v. City of Florence, 216 Ala. 72, 112 So. 335 (1927).

It is generally agreed that the doctrine of sovereign immunity developed in this country from the English doctrine, which grew out of the concept that the 'King can do no wrong.' That this occurred in America, given the historical background which led to the Revolutionary War, is 'one of the mysteries of legal evolution.' Borchard, Government Responsibility in Tort, 34 Yale L.J. 1, 4 (1924). The concept of municipal immunity from tort claims had its beginning in the English case of Russell v. Men of Devon, 100 Eng.Rep. 359 (1788), which, it has been noted, was 12 years after the Declaration of Independence. Massachusetts is said to be the first state in the United States to adopt the doctrine by judicial decision in Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812).

Alabama first considered the question of tort liability of municipalities in 1854, in Smoot v. The Mayor, etc. of Wetumpka, 24 Ala. 112. Four years later, it declared cities immune to suit for torts committed by agents in the exercise of a governmental function. Dargan v. Mayor, etc. of Mobile, 31 Ala. 469, 70 Am.Dec. 505 (1858). There followed a long line of cases holding that municipalities were liable for torts committed in the exercise of their corporate or proprietary capacity, but were immune from suit for the commission of torts in their governmental capacity.

During this same period, this court made a distinction in connection with streets. In Smoot v. The Mayor, etc. of Wetumpka, supra, in holding that the cities were liable for negligent injuries arising out of defects in the streets, the court fixed liability on the theory that there was a breach of an affirmative duty on the part of the city to keep the streets in good repair. The street cases did not rest on the distinction between governmental or proprietary functions, as did other torts. Albrittin v. Mayor & Aldermen of Huntsville, 60 Ala. 486, 31 Am.Rep. 46 (1877); City of Selma v. Perkins, 68 Ala. 145 (1880); City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422 (1882); Bradford v. Mayor & City Council of Anniston, 92 Ala. 349, 8 So. 683 (1890); Mayor & Aldermen of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243 (1890); Mayor v. Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424 (1895); Lord v. City of Mobile, 113 Ala. 360, 21 So. 366 (1896); City Council of Montgomery v. Reese, 146 Ala. 410, 40 So. 760 (1906); and City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48 (1907).

The doctrine of governmental immunity in this country has been universally condemned in an unending number of published statements by legal scholars and jurists. It is frequently stated that the doctrine cannot be defended on any logical basis. By the turn of the century, it was being criticized as unjust and irrational from many sources; but, there is no doubt that the doctrine was, by that time, firmly established in Alabama law by decisions of this court, as it was in a majority, if not all, of the other states of the Union.

Against this background, the Alabama Legislature acted in 1907, by enacting legislation which is now carried as Title 37, §§ 502--504, which provide:

§ 502. 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(e) 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 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 knowledg eof 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. of knowledge of such defect on the part the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as defendant or defendants of the suit, and no judgment shall be rendered against the city or town, unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant or when judgment is rendered in his favor on some personal defense, and if an action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provisions in the preceding section, the plaintiff shall be nonsuited, unless he amends by making such party or corporation a defendant if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately, irrespective of this provision. When a judgment shall be obtained against a municipality and the other party liable as aforesaid, execution shall issue against the other defendant or defendants in the ordinary form, and shall not be demandable of the city or town unless the other defendants are insolvent, and the same cannot be made out of their property, and the city or town shall pay only so much of the said judgment as cannot be collected out of the other defendants. If the injured party shall, before bringing suit, demand of the mayor of such municipality the name of such other person or persons or corporation as may be liable jointly with the said municipality to such injured party, and if such mayor failed to furnish within ten days from the making of such demand, the name of such person or persons or corporation, so jointly liable, the said injured party shall not be required to join such other person as a party defendant with said municipality in any suit brought to recover damages for such injuries.

' § 504. No...

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