62 So. 473 | Ala. Ct. App. | 1913
— The general rule, established by judicial decision, for measuring the liability and immunity of municipal corporations to and from civil actions for torts is thus clearly and succinctly stated in 28 Cyc. p. 1257, Avliere the authorities are collated, to wit:
“A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold functions and duties. The one class of its powers is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it, as a governmental agency, for the Avelfare and protection of its inhabitants or the general public; the other relates only to special or private corporate purposes, for the accomplishment of Avhich it, like private corporations, acts, not through its public officers as such, but through agents or servants employed by it. In the former case its functions are political and governmental, and no liability attaches to it at common law, either for- nonuser or misuser of the power or for the acts or omissions on the part of its officers or the agents through whom such governmental functions are performed or the servants employed by such agencies. In its second character above mentioned (that is, in the exercise of its purely municipal or corporate, func
As instances of the application of this doctrine of the nonliability of municipal corporations for failure to discharge a public duty, or for negligence in its discharge, our Supreme Court have held that a city is not liable for failure to abate a nuisance. (Davis v. Montgomery, 51 Ala. 139, 23 Am. Rep. 545); nor for failure to protect a citizen from the violence of a mob, although the police by diligent discharge of duty could have done so (Campbell v. Montgomery, 53 Ala. 527, 25 Am. Rep. 656) ; nor for the negligence of a police officer in killing a slave, while the former was engaged in an attempt to arrest another person (Dargan v. Mobile, 31 Ala. 471, 70 Am. Dec. 505) ; nor for negligent failure to provide a fireman, employed by it in the maintenance of a fire department, a safe equipment with which to work (Long v. Birmingham, 161 Ala. 427, 49 South. 881, 18
“Among the private or corporate acts' for negligence in the performance of which on the part of its officers or agents a municipality is held liable, are acts which have relation to the management of the corporate or private concerns of a municipality, from which it derives special or immediate profit or advantage as a corporation, or for the acts or negligence in the exercise of
For instance, our Supreme Court has held that a city engaged in operating an electric light plant, if authorized thereto by its charter, is liable for the negligence of its servants in leaving an electric wire exposed with which. a person came in contact and was injured.— Darby v. Union Springs, 173 Ala. 709, 55 South. 889.
We.have engaged in these preliminary observations in order that a clearer view and understanding may he .obtained of the meaning of the recent statute enacted in- this state, which fixes, defines, and limits the liability of municipalities for torts. It supersedes the authority. of. judicial decisions, and these need not concern us, except in so far as they may be looked .to as an aid in .'interpreting the statute. That statute (Code, § 1273) th.us reads: “No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was .done or suffered through the neglect, carelessness, or unskillfulness of some agent,' officer, or employee of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy SQme defect in the streets, alleys, public Avays, or buildings after the same had been called to the attention of the council, or after the Sgme had existed for such unreasonable length of time a^ - to raise ,a presumption of knowledge of -such defect qn the part of the council.”
A demurrer was filed to the complaint, containing numerous assignments of defects therein, a great many of which raised merely the same point in different verbiage. All were overruled, and after trial and judgment for plaintiff defendant appeals, assigning as error here, among others, the overruling of his demurrers. We need consider here, however, only the first ground, since upon it, under our view of the law, the case may be entirely disposed of, as the complaint must fall when tested by it alone. This ground raises the proposition that the complaint fails to state a cause of action because (following the language of the statute we have just quoted) it fails to show that the injuries complained of were suffered either as the result of the negligence, carelessness, or unskillfulness of some agent, officer, or employee of defendant, engaged in work therefor, and while acting in the line of his duties, or as the result of the negligence, carelessness, or failure of defendant city to remedy some defect in its streets, alleys, or public
Plaintiff’s injury, as set forth in tbe complaint, in our opinion, was neither tbe result of negligence, carelessness, or unskillfulness on tbe part of defendant’s agents, officers, or employees engaged in “work” therefor, nor of a “defect” in its streets or sidewalks, within tbe contemplation of tbe meaning of tbe terms “work” and “defect,” as used in tbe statute we have quoted. Tbe character of “work” to which tbe statute has reference is work of the servants or officers of a municipality while engaged in tbe performance of manual labor or in discharging ministerial duties therefor in tbe execution of its private or corporate acts, or in carrying out some public improvements or works entered upon by it, as contradistinguished from services performed by its officers in discharging tbe governmental duties of tbe corporation. Tbe abatement of a nuisance belongs to tbe latter class, and tbe municipality is liable neither for a failure of its legislative officers to pass ordinances defining and prohibiting tbe maintenance of nuisances on its sidewalks or prohibiting tbe dropping of banana peelings, etc., on tbe sidewalk, nor for a failure of its executive officers to enforce sucb ordinances when passed. These are essentially governmental functions (a part of tbe police power of the city), for tbe nonfeasance or misfeasance of its officers in performing which a municipality was not liable before tbe statute, and certainly is not liable since tbe statute, which was clearly designed to limit rather than enlarge tbe scope of municipal liability for torts. — 28 Cyc. 1291, 1356, 1289; Davis v. Montgomery, 51 Ala. 139, 23 Am. Rep. 545; Dargan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505; Camp
Lastly, then, we are to consider the question as to whether or not the habitual dropping and accumulation on the sidewalk of banana peelings, peanut hulls, decayed cabbage leaves, etc., is a “defect” in the street within the contemplation of that word, as employed in section 1273 of the Code, which we have cited. “Defect,” as we understand the meaning of the word as here used, has reference to some fault inherent in the way itself, either in its construction, improvement, or repair, or the condition in which it is maintained, ánd not to something which is foreign and incidental only, or to some obstruction which is permanent as opposed to that Avhich is transient merely. This is the construction which that term, as used in the employer’s liability act, has received by our Supreme Court. That statute (Code, § 3910, subd. 1) makes the employer liable (quoting the statute) “when the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the master.” In the construction of this statute our Supreme Court have repeatedly held that foreign bodies or substances on or dangerously near the track of a railway, not permanent or inhering in, but of a trans
The duty of a city with regard to keeping its streets in repair and in a reasonably safe condition for travel is a public or governmental duty, and as hereinbefore pointed out, in the absence of a statute, expressly or impliedly, imposing such duty on the municipality, it is not liable for a failure to discharge it to one injured in consequence of such failure. — Authorities, -supra. And even when the statute imposes on the city such a duty, it is competent for the Legislature (the same body which created the duty) to relieve of or limit the liability for a failure to discharge it. — Parsons v. San Francisco, 23 Cal. 462; Birmingham v. Starr, 112 Ala. 104, 20 South. 424; 28 Cyc. 1265, 1243.
The plaintiff urges upon our consideration two cases (Garibaldi v. O’Connor, 210 Ill. 284, 71 N. E. 379, 66 L. R. A. 73, and Archer v. Johnson City [Tenn.] 64 S. W. 474), upon which the present complaint is evidently grounded, and which as to the facts are almost identical with the case stated in the complaint, but neither of which conflicts in point of law with what we have herein held. The first case mentioned was a suit against the private persons who created the nuisance, and they were not inconsistently with what we have decided, held liable. The second case, while against the municipality itself, was yet predicated upon a. statute which imposed upon the city the duty of “keeping its streets in a reasonably safe condition for the traveling public,” while the statute we are considering relieves of liability, ex
The judgment of the lower court is reversed, and the cause remanded.
Keversed and remanded.