Sisco v. City of Huntsville

• Decision Date: 10 October 1929
• Docket Number: 8 Div. 64.
• Citation: 220 Ala. 59,124 So. 95
• Parties: SISCO v. CITY OF HUNTSVILLE ET AL.
• Court: Alabama Supreme Court

124 So. 95

220 Ala. 59

SISCO v. CITY OF HUNTSVILLE ET AL.

8 Div. 64.

Supreme Court of Alabama

October 10, 1929

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Action for damages by W. O. Sisco against the City of Huntsville and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Douglass Taylor and S. H. Richardson, both of Huntsville, for appellant.

Lanier & Pride and Watts & White, all of Huntsville, for appellees.

BOULDIN J.

Action in damages against the city of Huntsville and others for alleged negligence in the construction and maintenance of sewers resulting in injury to plaintiff's property.

Plaintiff's evidence tended to show a manhole on Pratt avenue, part of the system of sanitary sewers, had the cover misplaced and some bricks removed; that during a heavy rainstorm waters entered the manhole at an elevation above the point of plaintiff's connection; that mud and debris choked the sewer at a point below plaintiff's connection; and as a consequence plaintiff's residence was flooded through the toilet, resulting in injury to the building and contents.

A municipality duly authorized to construct and maintain a system of municipal sewers, when undertaking so to do, owes the duty of reasonable and ordinary care to avoid injury to persons and property. While related to the government function of preserving the public health, such improvement and the maintenance thereof involves continuous management.

To undertake this service, imposing local assessments or other form of taxation for the purpose is to assume a measure of legal duty in its performance. The law, as long declared in this state, deals with it as in the nature of a corporate rather than a purely government work.

The officers or agents of the city are in the performance of ministerial rather than government functions and the city is liable for the consequences of their negligence while acting within the line and scope of employment. The liability is analogous to that involved in the construction and maintenance of streets, or public utilities like water works and light plants. City of Montgomery v. Gilmer & Taylor, 33 Ala. 116, 70 Am. Dec 562; Mayor & Council of Troy v. Coleman, 58 Ala. 570; Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Bieker v. City of Cullman, 178 Ala. 662, 59 So. 625; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; City of Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780; City of Montgomery v. Stephens, 14 Ala. App. 274, 69 So. 970. Such is the prevailing rule in other states. 43 C.J. p. 1127, § 1889; Id., p. 1129, § 1891.

The controlling question is whether any duty to plaintiff had arisen under the facts of the case.

During the year 1926 the city let a contract to lay sewers along and to pave, Pratt avenue. The sewers were laid first. The manholes were brought to the approximate level of the proposed pavement, and the covers laid over them. The finishing up of the manholes and final placement of the covers was to await the completion of the pavement. At this stage the plaintiff installed his sewerage lines and connected up with the sewer. Some two months later the injury occurred. The paving had never been done. The sewer had not been inspected and accepted by the city, but it remained in the possession and...