Nelson v. Johnson

• Decision Date: 14 June 1956
• Docket Number: 8 Div. 731
• Citation: 264 Ala. 422,88 So.2d 358
• Court: Alabama Supreme Court
• Parties: Thomas F. NELSON et al. v. James W. JOHNSON.

Page 358

88 So.2d 358

264 Ala. 422

Thomas F. NELSON et al. v. James W. JOHNSON.

8 Div. 731.

Supreme Court of Alabama.

June 14, 1956.

Peach, Caddell & Shanks, Decatur, for appellants.

Russell W. Lynne, Decatur, for appellee.

LIVINGSTON, Chief Justice.

This is an action by plaintiff, James W. Johnson, against defendants, Thomas F. Nelson and the City of Decatur, to recover damages for injuries sustained by plaintiff in a collision between a motorcycle driven by plaintiff, and a truck driven by Nelson, the truck being owned by the City of Decatur. This appeal was perfected from a judgment awarding damages to plaintiff. The two principle questions to be decided on this appeal are whether the complaint alleges that Nelson was engaged in performing a corporate function of the City of Decatur, and if it does, whether the evidence introduced by plaintiff is sufficient to make out a case for the jury.

The material portion of the complaint is as follows:

'* * * and the said defendant, the City of Decatur, Alabama, acting through its said agent, servant or employee, Thomas F. Nelson, who at said time and place was then and there acting within the line and scope of his employment, engaged in and about the following business, namely, the operation of defendant's motor truck or motor vehicle which was being used at the time for the purpose of hauling oil or other inflammable fuel to various and sundry locations in the city of Decatur, Alabama, for the purpose of refueling signal flares or torches which were placed about the streets of the city of Decatur, Alabama, where said streets were being repaired so as to designate barriers and to warn the general public of their presence, and plaintiff alleges that the said flares were being used by the said city as a part and parcel of its street's repairing or maintenance thereof; and, the plaintiff avers that while defendant's motor truck was being so used and while defendant's said agent, servant, or employee, while acting within the line and scope of his said employment was driving the said automobile or truck belonging to said municipality, in a westerly direction on East Lafayette where the same intersects and crosses the said Alabama Street or U. S. Highway #31, and so negligently operated said motor vehicle at the time and place and while so acting within the line and scope of his said employment or authority, ran the same into, against or over the motorcycle of plaintiff so as to cause great damage and injury to plaintiff, * * *.'

Defendants separately and severally demurred to this complaint on the ground that the use of the vehicle for the purposes alleged was not in the discharge of any corporate or ministerial function of a municipality. Appellants contend that it was error to overrule this demurrer as to the defendant municipality.

To hold a municipality liable for the negligent act of one of its agents, it is necessary to allege facts showing that the agent is engaged in the performance of a ministerial or corporate work and not a governmental function. City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; McSheridan v. City of Talladega, 243 Ala. 162, 8 So.2d 831; City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192. This court has determined and settled that the maintenance of public streets is a corporate function of a municipality and that the municipality is liable for the negligent performance of that function by its agents where such negligence results in injury. Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; Id., 216 Ala. 661, 114 So. 55; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841.

In City of Birmingham v. Whitworth, supra, this court held that a complaint which alleged that defendant municipality's agents were engaged in the operation of defendant's truck to haul slag or cinders for the purpose of building, maintaining, or repairing a portion of the public streets alleged the performance of a ministerial function. We see no material distinction between hauling slag or cinders to be used in the maintenance of streets and in the hauling of oil or other inflammable fuel to points in the city to refuel signal flares which were placed about excavations in the streets to warn the public of danger. Part of a municipality's duty to maintain its streets is the duty to erect guards or warning signals at places where the city leaves excavations in the streets, and the municipality is liable for injuries caused by the negligent failure to do so. City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169, and cases cited therein. In Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42, 44, the complaint alleged that the injury occurred late in the afternoon while defendant's agents were on the way to place lights about a hole which a city agency had dug in the street in order to work on water equipment. The court held that the defendant's demurrer was properly overruled, and said:

'Here the defendant's employee was on his way to place a protective light at a dangerous hole in the street. He was undertaking to make safe that which was unsafe and to protect the city against liability for failure to maintain its streets in a reasonably safe condition. This act was intimately connected with and directly related to the duty of the city to maintain its streets. We are of the opinion that it must be classified as part and parcel of the performance of that duty.'

We are convinced that the same reasoning applies to the case before us and that the complaint alleges that Nelson was engaged in the performance of a corporate function of the City of Decatur at the time of the injury to plaintiff.

The evidence reveals that defendant, Nelson, was an employee of the Street Department of the City of Decatur, whose duty, on the day of the accident, was to service signal flares which were placed about excavations at two places in the streets of Decatur. To accomplish this mission, he was furnished with a truck by the city which he was to keep at his home over the week end. In addition to servicing the flares, he was to be on call to answer any complaints concerning the street department. On Saturday afternoon, he lighted the flares, and on Sunday morning proceeded in the truck to the locations of the excavations where he blew out the lights, refilled the containers with fuel and set them in place to be relighted before dark. He then went to the city garage and stayed for about an hour. Between 12 noon and 1:00 P. M., he left the garage in the city truck to return to his home where he would wait until late afternoon when he would drive out and relight the flares. In the truck, Nelson had some flares and a five-gallon oil can in which was the remainder of the oil that had been used to refill the flares, and which was to be used in the afternoon in the event any of the flares had been turned over and spilled during the day. It was on this trip to Nelson's home that the accident which caused injury to plainti...