59 So. 625 | Ala. | 1912
— The complaint contained eight counts. Demurrer was sustained as to counts 3, 5, 7, and 8, and overruled as to the others, upon which the case
Count 3 was evidently copied from count 9 in the case of Arndt v. Cullman, reported in 132 Ala. 540, 31 South. 478, 90 Am. St. Rep. 922. The record in that case has been examined; and it shows that count 3 is evidently a copy of count 9 in the Arndt Case. A demurrer was interposed to count 9, in that case, containing 72 grounds. The trial court, in that case, sustained the demurrer, as did the trial court in this case; but on appeal of the Arndt Case this court held that count to be good, and that there was therefore error on the part of the trial court. We see no reason to hold otherwise now,‘or to overrule that case..
It is insisted that, if error, it was without injury, because plaintiff was entitled to the same relief and damages, under other counts upon which the trial ovas had, that he could have obtained under this count. To this we cannot agree. We find no one of the counts, to which the demurrer was overruled, that was even practically a duplicate of count 3. Evidence would proba: bly have been admissible under that count that would not have been admissible under any one of the other counts. We are unable to say that this error was without injury.
The demurrer was properly sustained as to the other counts. They sought to recover damages on account of the failure of the city to abate an alleged nuisance. One alternative averment was that the city allowed the nuisance to be maintained. A municipality is not liable to an action at law, by one citizen, to recover damages on account of a nuisance erected and maintained
The Supreme Court- of Michigan, in the case of Hines v. City of Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A. 844, a case very much like this, has well expressed the law on this phase of the case, and we believe it is among the leading cases upon this particular feature of the liability of municipalities. We quote: “Municipal officers are in no such sense municipal agents that their negligence is the neglect of the municipality. It is true, if the act which is done by a municipal corporation Avould be tortious if done by a natural person, the corporation is held liable for it to the same extent, and for the same reason, that the natural person would have been. Here the complaint is that the defendant neglected and refused to act, after having full knowledge that Ruggles proposed to erect a Avooden building within the fire limits fixed by the ordinances of the city. The rule is well established, however, not only in this state, but in most of the states, that simply as municipal corporations, apart from any contract theory, no public bodies can be made responsible for official neglect involving no. active misfeasance. It is only where corporations have been guilty of some positive mischief produced by active misconduct that they have been held liable, and not from mere' nonfeasance, or for errors of judgment. Municipal corporations, under their charters and ordinances, do not become in
Our own court, in the case of Smoot v. Wetumpka, 24 Ala. 112, 119, speaking of a count somewhat similar to the counts in this case, said: “The gravamen of this count, if we rightly understand it, is not that the corporation improperly or carelessly erected the bridge, but that it failed to abate it after the same had become so unsound and rotten as to be a public nuisance. As the bridge was on private property (the count positively negativing the idea of its being on a public highway, and failing to show a public use of it for so long a period as to amount to a dedication of it to the city), if the corporation had torn it down as a nuisance, it would have been liable to the owner of the property in the event it had turned out not to be such, and the resolve of the corporation for its abatement would have furnished to it no protection. But before it could be abated by the city authority, as a nuisance, the question must first be settled by the corporation that it was such nuisance; and this involved the exercise of judicial power, the failure to exercise which properly, in the absence of malice or corrupt intention, constitutes no ground of action. We are of opinion,' therefore, that the third count was bad. Unlike the other count, it avers no duty on the part of the corporation to repair the bridge, but places it beyond its jurisdiction, except upon the ground of its being a nuisance.”
As the case must be reversed on the record proper, it is unnecessary to pass upon the motion to strike the bill of exceptions, or upon the sufficiency of the insist
Reversed and remanded.