Walker County v. Burdeshaw

• Decision Date: 25 June 1936
• Docket Number: 6 Div. 983
• Parties: WALKER COUNTY v. BURDESHAW.
• Court: Alabama Supreme Court

169 So. 227

232 Ala. 621

WALKER COUNTY v. BURDESHAW.

6 Div. 983

Supreme Court of Alabama

June 25, 1936

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Action for damages by J.H. Burdeshaw against Walker County. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

R.A Cooner, of Jasper, for appellant.

Pennington & Tweedy and J.J. Curtis, all of Jasper, for appellee.

GARDNER Justice.

Over Lost creek, in Walker county, along the public highway, is a one-way bridge, more than 20 feet in height and of considerable length, with banisters or railings on the side, maintained by the county as a part of the public highway for more than 40 years. Hovater v. Franklin County, 217 Ala. 439, 116 So. 526. For a space of 12 feet or more on one side these banister rails were down, and had been so for some time, when plaintiff, driving his team (a mule and wagon) across the bridge fell through this opening to the ground below, and for injuries to himself and mule received a judgment against the county, from which this appeal is prosecuted.

The complaint in all material respects followed that considered in Walker County v. Davis, 221 Ala. 195, 128 So 144, and was sufficient. Section 6457, Code 1923.

There was evidence tending to show actual notice of the defect in the bridge to the county authorities, and that upon the merits a case of actionable negligence was established does not appear to be seriously questioned.

The defense in large part rested upon the difficulty confronting plaintiff in the proof as to the bridge having been constructed by an independent contractor within the influence of the above-noted Code section, defendant insisting that because there were offered no records of the commissioners' court, or that there existed a record as to the erection of this bridge (citing Mobile County v Maddox, 195 Ala. 336, 337, 70 So. 259; Crenshaw County v. Sikes, 113 Ala. 626, 21 So. 135), plaintiff could not make out his case.

The duty to record the proceedings of the commissioners' court is placed by statute upon the judge of probate, section 6763, Code 1923, and presumably he did so in the performance of this duty. 12 Alabama and Southern Digest, k 83; First National Bank v. Terry, Briggs & Co., 203 Ala. 401, 83 So. 170.

The bridge in question was constructed in 1894, and it appears without dispute that the commissioners' court records for that period, that is from 1889 to 1899, cannot be located after diligent search, due doubtless to destruction of the courthouse by fire in 1932, and the consequent removal of records for temporary purposes. But the loss or destruction of these records established, justified plaintiff in making out his case by secondary proof thereof. Brown v. Shelby County, 204 Ala. 252, 85 So. 416, 417; Ingram v. Evans, 227 Ala. 14, 148 So. 593; Williams v. Colbert County, 81 Ala. 216, 1 So. 74.

Presumably the records were properly kept. Their loss is shown, and plaintiff was properly permitted to prove the construction of the bridge by parol evidence of those who yet survived and participated in its erection. Authorities supra. The proof was sufficient to justify a reasonable inference that the bridge was constructed under a contract with the county commissioners by an independent contractor.

Whether a guaranty bond was given, the proof is silent, as evidently that was a matter peculiarly within defendant's knowledge, and a matter concerning which defendant was at liberty to require or not, as it saw fit. Section 6457, Code. And, in the construction of this statute, the court in Shannon v. Jefferson County, 125 Ala. 384, 27 So. 977, held that by its terms the rule of county liability was the general rule, and its exemption from such liability by reason of an effective bond is the exception. It follows, therefore, that by the proof offered as to the defective condition of the bridge built by an independent contractor, as above indicated, and injury as a proximate result, plaintiff made out a prima facie case of liability against the county, for, as observed in the Shannon Case, supra, such liability in the general rule, and the question of guaranty bond being the exception to the rule, is a matter to be brought forward by the county. And, in the absence of any such suggestion, it may be properly ignored.

The numerous assignments of error relating to rulings on evidence, as herein indicated, were free from...