Long v. City of Birmingham

• Citation: 49 So. 881,161 Ala. 427
• Parties: LONG v. MAYOR, ETC., OF CITY OF BIRMINGHAM.
• Decision Date: 24 May 1909
• Court: Alabama Supreme Court

49 So. 881

161 Ala. 427

LONG v. MAYOR, ETC., OF CITY OF BIRMINGHAM.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by W. T. Long against the Mayor and Aldermen of the City of Birmingham. Judgment for defendant, and plaintiff appeals. Affirmed.

Gaston & Pettus, for appellant.

R. H Thatch, for appellee.

SAYRE J.

The appellant was injured by falling from an extension ladder while in the performance of his duties as a fireman for the city of Birmingham. The complaint asserts the liability of the defendant corporation; several counts proceeding upon various sections of the employer's liability act, and others upon supposed derelictions of the city in furnishing to the appellant a safe place or safe instrumentalities in which and with which to perform his duties as a fireman. The court below sustained a demurrer to the complaint, which went upon the fundamental ground that in furnishing fire apparatus and operating its fire department the city was in the performance of a governmental duty, and so not responsible for the acts or omissions of its officers, agents, or employés, or responsible for defects in its apparatus. The demurrer was sustained, and this appeal followed.

The plaintiff's injury was sustained in October, 1906. The then charter of the city of Birmingham conferred upon it power to establish and maintain a fire department. Loc. Acts 1898-99, p. 1412. It may be conceded that the employer's liability act applies to municipal corporations, except where such corporations are engaged in the discharge of governmental duties; that is to say, in the exercise of powers conferred for the general public good, as distinguished from those conferred for the private advantage of the corporation. The line which marks the difference between powers conferred upon municipal corporations for the public good and those conferred for the private advantage of the corporation has never been drawn except in general terms. A good example of the efforts in that direction is to be found in Richmond v. Long, 17 Grat. (Va.) 375, 94 Am. Dec. 461, where it is said: "The functions of such municipalities are obviously twofold: (1) Political discretionary, and legislative, being such public franchises as are conferred upon them for the government of their inhabitants and the ordering of their public officers, and to be exercised solely for the public good, rather than for their special advantage; and (2) those ministerial, specified duties which are assumed in consideration of the privileges conferred by their charter. Within the sphere of the former they are entitled to this exemption, inasmuch as the corporation is a part of the government to that extent, its officers are public officers, and as such entitled to the protection of this principle; but within the sphere of the latter they drop the badges of their governmental offices and stand forth as the delegates of a private corporation in the exercise of private franchises, and amenable as such to the great fundamental doctrine of liability for the acts of their servants." Such general expressions afford but little aid in reaching a solution of any particular case. In Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669, it was observed that, "in order to determine whether powers exercised by a municipal corporation in a given instance be public or private, regard must be chiefly had to the object for which they were granted."

Nothing in the terms of the charter of the defendant municipality or in the general statutes settles the question. That the power in the exercise of which municipal corporations maintain and operate fire departments, is classed by the overwhelming weight of adjudicated cases as among those governmental powers which are granted for the public good, and so, as to it, municipal corporations accorded exemption from the general rule of respondeat superior, must depend upon considerations of a sound public policy, which would relieve them of the...