Williams v. Stillwell

• Decision Date: 14 December 1889
• Citation: 6 So. 914,88 Ala. 332
• Parties: WILLIAMS v. STILLWELL.
• Court: Alabama Supreme Court

6 So. 914

88 Ala. 332

WILLIAMS v. STILLWELL.

Supreme Court of Alabama

December 14, 1889

Appeal from circuit court, Macon county; J. R. DOWDELL, Judge.

Action by Williams against Stillwell for personal injuries arising from a defective bridge. Defendant's demurrer to the complaint was sustained, and, plaintiff declining to further plead, judgment was entered for defendant, and plaintiff appeals.

W F. Foster and Abercrombie & Bilbro, for appellant.

J E. Cobb and S. B. Bain, for appellee.

STONE C.J.

In Lee Co. v. Yarbrough, 85 Ala. 590, 5 South. Rep 341, we said: "The liabilities of counties for injuries caused by defective public bridges is purely statutory; for, in the absence of statute, there is no liability." We cited many authorities in support of that proposition. The principle announced is that when a public bridge is constructed under contract with a third person as builder, and a bond or other guaranty has been taken from the builder, then, for an injury caused by defective structure, or want of necessary repairs, if suffered during the term covered by the guaranty, redress must be sought against the builder, and on the bond or guaranty. On the other hand, when the bridge is constructed under contract made with the builder, and no guaranty is or has been taken, or the period covered by the guaranty has expired, then, for such injury, suit may be brought, and a recovery had against the county. Code 1886, § 1456. We have many times declared these rights of action are of purely statutory creation, and that without the statute no recovery could be had against the county, and the action provided for could not be maintained against the builder. These principles are clearly set forth in the previous rulings of this court, many of which are cited in Lee Co. v. Yarbrough, supra.

It is certainly true that, in the performance of service or works under contract, the servitor or workmen may act so unskillfully or negligently as to do the employer a wrong beyond the mere breach of his contract. Such wrong is a tort, for which the employer may maintain an action on the case, or, if the wrong be a breach of any term of the servant's contract, he may maintain an action ex contractu, at his election. Insurance Co. v. Randall, 74 Ala. 170. But this right to sue in tort extends no further than to the employer, and, in some cases, to those who succeed to his legal rights.

The gravamen of the present...