Williams v. City of Birmingham

• Decision Date: 21 March 1929
• Docket Number: 6 Div. 156.
• Parties: WILLIAMS v. CITY OF BIRMINGHAM ET AL.
• Court: Alabama Supreme Court

121 So. 14

219 Ala. 19

WILLIAMS v. CITY OF BIRMINGHAM ET AL.

6 Div. 156.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages by Mary Williams, as administratrix of the estate of Eugene Harris, deceased, against the City of Birmingham and others. Plaintiff takes a nonsuit, and appeals from adverse rulings on pleading in sustaining demurrers to the complaint. Affirmed.

Fort Beddow & Ray, of Birmingham, for appellant.

Wilkinson & Burton, of Birmingham, for appellees.

FOSTER J.

This is an action against the city and the members of the park and recreation board of the city for the negligent shooting of plaintiff's intestate by the caddy master on the public golf links of the city, alleged to be the servant, agent, or employé of defendants in the operation of the golf links at Highland Park County Club, a public city park. The court takes judicial notice of the public operations of the city of Birmingham, and its ordinances, laws, and by-laws. Acts 1915 p. 297, § 7.

The park in question may be assumed, by judicial notice, or on the theory of adverse inferences chargeable against plaintiff, to be a public enterprise, conducted by the city for the welfare of its citizens and the public generally under the Act of September 29, 1923 (Acts 1923, p. 707). City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771.

Under such act the power is given the city to provide parks, playgrounds, recreational centers, or park areas by and through a park and recreation board named by the city. There is provision made for reasonable fees or charges for access to or use or enjoyment of any playground, etc., conducted by the city, to be paid into and become a part of the park and recreation fund of the city. The members of the board serve as such without compensation. The city is required to appropriate to the park and recreation board annually a minimum amount of $50,000. The board is vested with the power to acquire and operate for the city public parks and playgrounds. It is also provided that in establishing and conducting such activities the city shall be engaged in public and governmental functions.

We have had numerous cases in Alabama against cities for alleged tortious conduct, when the liability of the city depended upon the question of whether it was then engaged in a corporate function, or a public and governmental function, holding that it is liable when engaged in a corporate function and not liable when engaged in a public and governmental function. We do not seem to have had a case in Alabama when the acts in question related to the operation of parks or recreation centers.

The cases are numerous to the effect that, in the construction or maintenance of a street, the function is corporate, and a liability accrues for negligent injuries by the servants of the city in the line of their duty in this work. Some of the cases may be cited as follows: Birmingham v. Whitworth (Ala. Sup.) 119 So. 841; Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A. L. R. 89; Id., 216 Ala. 661, 114 So. 55; Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, and many other cases cited in them, not necessary here to repeat.

Many relations are pointed out in the cases above cited, distinguished as governmental from corporate functions. Perhaps the one nearest akin on principle to that we are considering relates to health and sanitation. Tuscaloosa v. Fitts, supra. It is said, because the function is delegated to the city "to promote public health and comfort to the pubic as a whole," it is governmental, and the city is not liable for the torts of its agents.

Going to other jurisdictions we find that there is conflict in the decisions. This is pointed out in 6...