Mathis v. City of Dothan
| Decision Date | 31 October 1957 |
| Docket Number | 4 Div. 923 |
| Citation | 97 So.2d 908,266 Ala. 531 |
| Parties | W. C. MATHIS v. CITY OF DOTHAN. |
| Court | Alabama Supreme Court |
L. A. Farmer and L. A. Farmer, Jr., Dothan, for appellant.
C. R. Lewis, Dothan, for appellee.
This is an appeal by the plaintiff from a judgment of nonsuit taken by him with leave to review the judgment of the trial court in sustaining demurrer to the complaint.
The suit was filed under authority of section 119, Title 7, Code of 1940, by the father for the death of his minor child alleged to have been caused by the wrongful act, omission or negligence of the City of Dothan and by its named employee.
The complaint is in two counts, both of which allege that the City of Dothan owned and operated a recreational center for the benefit of Negroes, which was open to the use of the Negro public. A part of the recreational facilities consisted in a swimming pool, for the use of which a small fee was charged. Count one of the complaint alleges that this defendant did not maintain said swimming pool in a reasonably safe condition for those who frequented and used it, in that defendant negligently failed to provide a lifeguard during the time said minor child of plaintiff was swimming in said pool; and that as a proximate consequence his child was drowned in said swimming pool. In count two of the complaint it is alleged that the lifeguard who was employed by the city and was its agent, servant or employee, and while so acting negligently left said swimming pool unguarded and unattended, and as a proximate consequence thereof plaintiff's minor child drowned while in said swimming pool.
There are several grounds of demurrer to the complaint, but the court in sustaining the demurrer to both counts expressly ruled upon grounds 9 and 10. Therefore we will not consider any other supposed defects with respect to those counts, as they are not involved on this appeal. Grounds 9 and 10 are based on the principle that the complaint shows that the city is engaged in a governmental function in conducting a swimming pool as a feature of a recreational park along with other amusements for the Negro public.
The only question presented is whether in operating that park, including the swimming pool, the city was engaged in a governmental enterprise or a proprietary enterprise. That question is properly presented to us therefore, and is the only question we have for consideration. We have had many cases which define governmental functions of a city with reference to the duty imposed upon municipal corporations by section 502, Title 37, Code. From the very beginning the decisions of this Court have settled the question that for the city to be liable under section 502, supra, it must not be engaged in a governmental function, or have neglected to perform a duty which was distinctly imposed upon the city by said statute, relating particularly to defects in the streets, alleys, public ways or buildings. A recreational park not being within any of those specific enterprises it becomes a matter of legal interpretation to say whether or not a particular enterprise is a governmental function or is in its nature proprietary.
This Court has often and very recently repeated the settled...
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City of Decatur v. Parham, 8 Div. 910
...that the operation of a swimming pool and bathhouse and similar recreational facilities are governmental functions. Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908, and cases cited. The holding in the case last cited is in accord with the prevailing view. See Annotation, 'Municipal ope......
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Jones v. City of Birmingham
...instant case. The following cases, and others cited therein, Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908; City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692; Smith v. City of Birmingham, 270 Ala. 681, 121 So.2d 687; Chaff......
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City of Foley v. Terry
...considered under our cases as a governmental function. City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692. Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908. See also 'Municipal operation of bathing beach or swimming pool as a governmental or proprietary function, for purposes of tor......
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Smith v. City of Birmingham
...recently in City of Bay Minette v. Quinley, supra; in Parr v. City of Birmingham, 264 Ala. 224, 85 So.2d 888; and in Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908. In the Parr case it was said that the operation of a municipal art museum was for the common good of all and hence the c......