Smith v. City of Birmingham

• Decision Date: 30 June 1960
• Docket Number: 6 Div. 478
• Citation: 270 Ala. 681,121 So.2d 867
• Parties: Elsie SMITH v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 867

121 So.2d 867

270 Ala. 681

Elsie SMITH v. CITY OF BIRMINGHAM.

6 Div. 478.

Supreme Court of Alabama.

June 30, 1960.

Wm. M. Acker, Jr., Smyer, White, Reid & Acker, Birmingham, for appellant.

Shannon & Conerly, Sam R. Shannon, Jr., and Edw. O. Conerly, Birmingham, for appellee.

The pertinent count of the complaint is as follows:

'Count B

'Plaintiff claims of the defendant the sum of Ten Thousand and no/100 Dollars ($10,000.00) as damages for that, on, to-wit, March 22, 1955, certain employees or agents of the defendant acting within the line and scope of their authority, brought to a place known as Lane Park, a park owned by defendant, in a truck owned by defendant, a dangerous wild animal, namely a buck deer, which said buck deer was the property of the Birmingham Zoological and Botanical Garden Society, a private organization which at said time and place was operating under a contract with defendant, under which said contract the said Society used certain property within the confines of said Lane Park for the maintenance of a zoo or wild animal menagerie; that while engaged in transporting the said buck deer and delivering it into the custody and control of the said Society as an accommodation to the said Society, defendant's said employees negligently allowed buck deer to escape from their custody; that the said actions of defendant through its employees were in the exercise of defendant's corporate, proprietary and ministerial function and not of its governmental function; that the said buck deer left the area of Lane Park and entered the City of Mountain Brook, Alabama; that at approximately 5:30 P.M. on said day, plaintiff was attacked by said buck deer and was knocked down, gored, and pawed by said deer until he was knocked away from her with the use of a chair by a by-stander; that plaintiff was gored in several places on her body and she was stamped upon and pawed all over her body by said deer and was severely shocked, bruised, hurt and shaken up, and her legs, arms, shoulders, back, chest, abdomen, neck and head were bruised and made sore and painful; that, as a result of this attack, plaintiff was unable to work for two weeks, and pains and swelling existed on her body for a long time thereafter, and she has suffered headaches and pains in her neck up to the present time; that it has been necessary for plaintiff to spend considerable money for surgical and medical treatment and medicine; that plaintiff has suffered permanent injuries; and that all of her damage was the proximate consequence of the above said negligence of the defendant through its agents and employees.'

LAWSON, Justice.

This is an appeal by the plaintiff from a judgment of nonsuit taken by her with leave to review the judgment of the trial court in sustaining demurrer to the complaint as amended. § 819, Title 7, Code 1940.

The sole assignment of error is to the effect that the trial court erred in sustaining the defendant's demurrer to Count B of plaintiff's complaint as last amended, which count will be set out in the report of the case.

It is established in this state that a municipal corporation is liable for injuries caused by the wrongful or negligent performance of its corporate or ministerial duties and it is equally established that such a corporation is not liable for injuries caused by the wrongful or negligent performance of its governmental functions. City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192; City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692.

The question is presented as to whether the averments of Count B show that the employees of the city were engaged in a governmental enterprise or a private enterprise in connection with the transportation and delivery of the deer.

Among the allegations of Court B are the following: '* * * that the said actions of defendant through its employees were in the exercise of defendant's corporate, proprietary and ministerial function and not of its governmental function * * *.' These averments state a conclusion of law not admitted by the demurrer. Laney v. Jefferson County, 249 Ala. 612, 32 So.2d 542. See Lybrand v. Forman, 259 Ala. 354, 67 So.2d 4.

This court has often repeated the definitions and terms here involved. It is unnecessary to go further back than the case of McSheridan v. City of Talladega, 243 Ala. 162, 8 So.2d 831, 833, in which it was said: "The underlying test is whether the act performed is for the common good of all, or whether it is...