Parr v. City of Birmingham

• Citation: 264 Ala. 224,85 So.2d 888
• Decision Date: 22 December 1955
• Docket Number: 6 Div. 948
• Parties: Ronnie PARR, pro aml, v. CITY OF BIRMINGHAM.
• Court: Supreme Court of Alabama

Page 888

85 So.2d 888

264 Ala. 224

Ronnie PARR, pro aml, v. CITY OF BIRMINGHAM.

6 Div. 948.

Supreme Court of Alabama.

Dec. 22, 1955.

Rehearing Denied March 22, 1956.

Hogan & Callaway, Birmingham, for appellant.

W. L. Clark, Birmingham, for appellee.

MERRILL, Justice.

Appellant, a minor suing by next friend, sought damages against the City of Birmingham for injuries sustained when a wrought iron plaque fell on and broke his leg while he was in the Birmingham Art Museum which is located in the City Hall. The demurrer to appellant's complaint was sustained; he took an involuntary non suit because of the adverse ruling of the court and has appealed.

The real question before us is whether the operation of the museum by the City of Birmingham is a corporate act or an act in the exercise of a governmental function.

The statute authorizing museums is Code 1940, Title 37, Sec. 511, which reads:

'Each city or town of six thousand population and over shall have power to acquire sites for, and to construct or otherwise acquire and to establish and maintain, public museums and public art galleries and each such city, town and county shall have authority to exercise the aforesaid powers to the end of rendering available public museums and public art galleries separate, the one from the other, or grouped two or more in the same building or as parts of the same institutions. Whenever any public museum or public art gallery, or any group of two or more in combination, had been established by any such city or town, the institution or enterprise as so established may be administered by and through such instrumentality or instrumentalities as the governing body of such city or town may determine upon.' (Italics supplied.)

Pursuant to this statute the Commission of City of Birmingham adopted Ordinance No. 783-F in August 1950 which provided for the creation of a Museum Board of the City of Birmingham to manage and operate a museum in space provided in the City Hall, but 'The Board shall not have the right to sue or be sued, and all property and property interests accruing to it shall be vested in and held for the City'. Section 3 of the Ordinance reads:

'Section 3. The Museum Board shall have the power to do the acts and things necessary to carry out the objectives and purposes set forth in this ordinance; to acquire by purchase, gift or loan any land, premises, money, securities, objects of art or other property for museum uses and purposes; to buy and sell and otherwise deal in property necessary to carry out its objectives; to cooperate with the Birmingham Art Club or any other public or private corporation or organization; to do any lawful act necessary or expedient to maintain and improve museum facilities for the people of Birmingham; to provide for the exhibition, particularly to students of the public schools and in general to the population of Birmingham, statuary and all forms of the graphic and decorative arts and other fine arts; to arouse interest, by any means deemed appropriate, in the cultivation of artistic talents and in the exhibition and recognition of artistic achievements; to...