McSheridan v. City of Talladega
| Decision Date | 11 June 1942 |
| Docket Number | 7 Div. 708. |
| Citation | 243 Ala. 162,8 So.2d 831 |
| Parties | McSHERIDAN v. CITY OF TALLADEGA. |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1942.
Rutherford Lapsley, of Anniston, for appellant.
Knox, Dixon, Dixon & Wooten, of Talladega, for appellees.
This is an action of trespass by the appellant against the City of Talladega, a municipal corporation, and Carl Jacks to recover damages for an assault and battery committed by Jacks on the plaintiff. The first count of the complaint avers: "Said damage and injury was proximately caused by such wrongful acts and illegal assault by the said defendant, Carl Jacks as an individual, and as acting in the line and scope of his duty as an agent, officer, or employee of the corporation and in its service in directing and controlling traffic on said public highway of the City in a patrol car belonging to the City; the plaintiff avers and charges that his injuries and damages as herein alleged were the proximate consequence of the illegal and wrongful acts, and wanton injury committed by the said defendant, Carl Jacks, and by the said City of Talladega, its agent, employee or officer as aforesaid." [Italics supplied.]
The second count adopted all the averments of the first count and adds: "And the plaintiff further states and charges that at the time of the said illegal and wrongful acts and wrongful injury upon his person, committed by the defendant Carl Jacks, this plaintiff was lawfully upon and using the highway of the City known as East Street, then being maintained as such for the use of the public; and such wrongful acts and illegal and wanton assault upon the plaintiff deprived him of his legal right to the free use of the highway by forcibly dragging him into the police car and taking him to the City Hall, where he was discharged without any criminal charge against him, for the loss of which, and for the physical pain and anguish, and injury to his person, as in this complaint alleged, that said defendants are jointly and severally liable to the plaintiff, in the said sum of twenty thousand dollars, hence this suit."
The court sustained the demurrer of the defendant municipality to each count of the complaint but overruled the demurrer interposed by the other defendant, and the plaintiff took a voluntary nonsuit and appealed. Code of 1940, Title 7, § 819; Ex parte Martin et al., 180 Ala. 620, 61 So. 905; Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, 116 A.L.R. 639.
It has long been the settled law in Alabama, that in so far as a municipal corporation acts in its private or proprietary capacity, it is liable in tort, under the doctrine respondeat superior, for the tortious acts of its agents or servants done within the scope of their employment. Campbell's Adm'x v. City Council of Montgomery, 53 Ala. 527, 25 Am.Rep. 656; Albrittin v. Mayor and Aldermen of Huntsville, 60 Ala. 486, 31 Am.Rep. 46.
But because of the dual character of municipal corporations, as agencies of the government which creates them for the enforcement of the law and the protection of the public generally, as well as corporate and proprietary, municipalities are exempt from the doctrine respondeat superior when officers selected or appointed by them are acting in the exercise of governmental functions. Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507; City of Birmingham v. Brock, 6 So.2d 499; Maddox v. City of Birmingham, 232 Ala. 383, 168 So. 424.
Speaking of the relation of police officers to the government and to the corporation, the following was quoted with approval from Prather v. City of Lexington, 13 B.Mon., Ky., 559, 563, 56 Am.Dec. 585, by Brickell, C.J.: ...
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...and excludes all others not embraced within such limits. City of Bessemer v. Chambers, 242 Ala. 666, 8 So.2d 163; McSheridan v. Talladega, 243 Ala. 162, 8 So.2d 831. evidence is without dispute that 65th Street is a two-lane highway, each of said lanes being 25 feet in width, leading along ......
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Swan v. City of Hueytown, No. 1031058 (AL 11/5/2004)
...performance of proprietary functions. See Downey v. Jackson, 259 Ala. 189, 194, 65 So. 2d 825, 828 (1953); McSheridan v. City of Talladega, 243 Ala. 162, 164, 8 So. 2d 831, 832 (1942); and Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320 (1931). Acts that were considered exercises ......