Milner v. City of Birmingham

• Decision Date: 30 May 1918
• Docket Number: 6 Div. 727
• Citation: 201 Ala. 689,79 So. 261
• Parties: MILNER v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

79 So. 261

201 Ala. 689

MILNER v. CITY OF BIRMINGHAM.

6 Div. 727

Supreme Court of Alabama

May 30, 1918

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by Mrs. Lilly B. Milner against the City of Birmingham. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Murphree & Richardson, of Birmingham, for appellant.

M.M Ullman and W.A. Jenkins, both of Birmingham, for appellee.

THOMAS J.

The plaintiff on August 26, 1915, brought suit against the city of Birmingham for damages for personal injuries. The breach of duty alleged was negligently allowing or permitting one of the sidewalks of the city to be and become in a dangerous and unsafe condition, which is specifically described. The summons and complaint was served on the defendant on August 30, 1915, and a demurrer thereto was filed on September 14th thereafter. It is shown that on June 19, 1916, the complaint was amended by the addition of count 2, and that on the same date the defendant filed demurrers to the complaint as so amended. It is further shown that on June 19, 1916, the complaint was again amended, by the addition of count 3. To this latter count no demurrer appears to have been filed.

The defendant, for answer to the complaint as amended, pleaded "not guilty" and contributory negligence as specified in pleas 2 and 3. The date of the filing of these pleas is omitted from the record, but this is immaterial, as we shall show.

Plaintiff demurred to pleas 2 and 3, but the judgment of the trial court on the demurrer is not disclosed by the record.

The record contains another amendment of the complaint, which we designate 3 12, reciting that theretofore, to wit, on June 20, 1916, the court had made an order in said cause that plaintiff amend her complaint by joining as a party defendant the Moore-Handley Hardware Company, a corporation, or failing to do so, suffer a nonsuit in said cause, and that plaintiff had duly excepted to this order and ruling of the court, and subsequently, on June 24, 1916, filed her motion in writing to set aside and vacate said order, and further reciting that on June 30, 1916, the court had overruled said motion, and that thereupon the plaintiff had duly and legally excepted to said order of the court overruling said motion etc. The record is silent as to such motion on the part of the city, the ruling thereon, the motion to set aside and vacate said order, and the order overruling this motion, and as to the recited exceptions alleged to have been reserved otherwise than is stated in this amendment.

On February 5, 1917, plaintiff filed an amended complaint (count 4) making parties defendant the city of Birmingham and the Moore-Handley Hardware Company, a corporation, alleging, among other things, that the said defendants, not mindful of their duty in the premises, had negligently allowed or permitted one of the said sidewalks on the said Jefferson avenue to be and become in an unsafe condition, in this, that defendants negligently allowed a certain hole or defect about one foot wide and one foot deep to be and remain in said sidewalk on said Jefferson avenue at a point near the intersection of said avenue with Burke street, within the city of Birmingham; that said defendant, Moore-Handley Hardware Company, had negligently and wrongfully caused said hole or defect to be in said sidewalk, in that it ran a steam roller or street packer into or upon said sidewalk at said point. And on said day above stated defendants refiled their respective demurrers to the complaint as so amended. It is to be noted that Moore-Handley Hardware Company was made a party by plaintiff's own action, and not by an order of the court requiring the amendment.

The bill of exceptions recites that on April 27, 1917, the city moved for a nonsuit against the plaintiff upon the ground that under sections 1273 and 1274 of the Code of Alabama, and an ordinance of the city of Birmingham numbered 200, the Alabama Great Southern Railroad Company, a corporation, ought to have been joined as a defendant in said suit, but that it was not so joined. This motion was submitted on an agreed statement of facts to the effect that plaintiff brought suit in this cause to recover of the city of Birmingham, a municipal corporation, damages for a personal injury received by her on, to wit, the 5th day of April, 1915, said personal injury having been suffered by reason of the fact that the plaintiff fell into a hole caused by a broken place in the sidewalk paving along the westerly side of Jefferson avenue about 30 or 45 feet southwardly from the railroad tracks of the Alabama Great Southern Railroad Company, in that portion of the city of Birmingham known as West End, and that at the time plaintiff's said injuries were received, and continuously since the 11th of November, 1914, the Alabama Great Southern Railroad Company, a corporation, organized and existing under the laws of the state of Alabama, was the owner of the property abutting upon the sidewalk paving where the plaintiff was injured, and that the said sidewalk was not under a maintenance guaranty.

On June 2, 1917, the motion was granted, but thereafter, on June 22d, plaintiff moved to set aside said order of nonsuit, because the motion was not in accordance with the provisions of sections 1273 and 1274 of the Code of Alabama, and deprived her of the right to "amend or be nonsuited" as provided by said sections of the Code, which motion was duly continued by the court until the 26th day of June, when it was granted, and the former order of nonsuit set aside. On June 30th the city's motion for a reconsideration was granted, unconditionally nonsuiting the plaintiff, to which action the plaintiff reserved an exception. Of this last judgment of unconditional nonsuit of plaintiff's cause of action for the failure to join the Alabama Great Southern Railroad Company as a party defendant the defendant says that, when a municipality is sued alone under section 1274 of the Code, the city must make it appear before demurrer or answer that some third person or corporation is liable, otherwise it waives the benefit of the statutory privilege; that the court has no power to order a nonsuit unconditionally under the statute; that section 3989 of the Code prescribes how city ordinances shall be proved, and that the court shall not take judicial knowledge of such ordinances.

While section 3989 does prescribe how city ordinances may be proved, yet by the act of 1915 (page 297, § 7) courts are authorized to take judicial knowledge of all the ordinances, laws and by-laws of cities within the state of Alabama of the class of Birmingham.

Motion to nonsuit is the proper remedy when a municipal defendant desires to avail itself of the provisions of section 1274 of the Code, in a case where the plaintiff has failed to join another party who is liable with the municipality under the provisions of section 1273 of the Code. The applicable provision of section 1274 is that to the effect that, if an action be brought against a 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 of section 1273, 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. Provision is also made for a demand by the injured party before bringing suit, of the mayor of such municipality, for the name of such other person or persons or corporation as may be liable jointly with the municipality to such injured party, and if such mayor fail 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. Ex parte Whaley (In re City of Bessemer v. Whaley) 188 Ala. 381, 384, 66 So. 145.

After a careful consideration of the statute and the construction placed thereon by this court, we are of the opinion that the defendant municipality did not waive the benefits of the statute, even though it did not make its motion for a nonsuit until after filing pleas to the amended count. The time when such motion may be made,...