108 So. 539 | Ala. | 1926
Lead Opinion
The case is here upon the ruling sustaining plea No. 3 as against apt grounds of demurrer. The complaint and plea No. 3 appear in the report of the case. The one legal question presented on this appeal is: Is a municipal corporation liable under the homicide act for the death of a city convict by wrongful act of the officer or agent guarding and superintending the work of the prisoner in the repair and maintenance of the streets of the city?
As regards the public making use of the streets of a city, it has been the long-declared law of this state that in the maintenance of public streets and sidewalks the municipality is engaged in a corporate rather than purely governmental function. As a result the municipality is liable for injuries resulting from defects in the streets due to negligence of its officers and agents. This duty to the public to maintain the streets in a safe condition is not suspended at a time and place where the city, by its own force of labor and superintendence, is engaged in street work, and hence it is liable for injuries to persons in the proper use of the street from negligence of the street force while so engaged. City of Bessemer v. Barnett,
Following up this doctrine that the officers and agents engaged in street work represent the municipality in its corporate or business character, it was held in City Council v. Harris,
The case of City of Birmingham v. McKinnon,
In general, the liability of a municipal corporation for the torts of its officers or agents, whether from malfeasance or misfeasance, in the construction or maintenance of streets, is the same as in the construction or operation of waterworks, light plants, and other public utilities. Athens v. Miller,
On the other hand, under the general principle of immunity of government agencies from liability for the torts of its officers, there is no liability for the negligence or wrongful act of police officers in arresting or guarding prisoners. Dargan v. Mobile,
Looking to the authorities in other states, they are practically of one accord in holding nonliability for negligent injury to prisoners due to defective or insanitary prisons, confinement with drunken, vicious, or infected *524
fellow prisoners, or exposure to cold or fire therein. The same rule applies to workhouses and injuries to prisoners put to work as a penalty for offenses; such work being incidental to the execution of the sentence. The rule is based upon the general doctrine of immunity for the wrongful acts of officers engaged in public governmental duty. In such case the doctrine of respondeat superior is not recognized. 19 R. C. L. p. 1126, § 404, and notes 4, 5, and 6; 6 McQuillin on Corp. § 2642, and notes, pp. 5453 to 5456; 4 Dillon on Mun. Corp. § 1656, note, p. 2886; Nisbet v. Atlanta,
The case of Nisbet v. Atlanta,
The doctrine of immunity in favor of municipal corporations is grounded in public policy. Mr. McQuillin, § 2642, speaks of the injustice of the rule announced as to prisoners in jails and workhouses. We are not inclined to extend it. We can see no basis of justice for holding the municipality liable for the acts of its agents engaged in the construction or operation of public works, or other corporate function, at the suit of a third person free to avoid danger, or an employee who voluntarily engages in the service, and deny the same protection to one put to involuntary labor under like conditions.
We therefore hold that, where the prisoner is sentenced to work upon an enterprise defined by our law as corporate in character, the municipality is liable for injury or death proximately resulting from the wrongful act of its agent in the course of such employment; that, if injury results from the negligence or wrongful act of the superintendent of the work, and the prisoner's employment therein, the municipality is not exempt because such corporate agent was also a police officer having custody of the prisoner.
The trial court erred in overruling the demurrer to plea No. 3.
Reversed and remanded.
SAYRE, THOMAS, and MILLER, JJ., concur.
Dissenting Opinion
The rule generally recognized by the authorities as applied to concrete cases, here applicable, is stated in 19 R. C. L. § 404, as follows:
"A municipality is not liable for the injurious results of confining a person in an insufficiently heated or otherwise unsanitary jail, prison, workhouse, lockup or calaboose, or for the negligence of the persons in charge of the jail in allowing it to be burned, thus causing the death of a prisoner, or for personal injuries arising out of the work at which the inmate of a prison is put, or from the assaults of other prisoners, even if the public authorities should have known of the danger. In such cases it can make no difference that the injured person was confined in prison for violation of a city ordinance, or that the city derived a revenue from the products of the labor of the inmates of its prison."
The foregoing section is cited in the majority opinion with the statement:
That the "rule applies to workhouses and injuries to prisoners put to work as a penalty for offenses; such workbeing incidental to the execution of the sentence." (Italics supplied.)
The words "such work being incidental to the execution of the sentence" constitute the turning point of the question here considered, and leads logically to a contrary conclusion. Had plaintiff's intestate met his death by the wrongful act of the guard while in prison or being guarded at a workhouse, confessedly, under all the decisions, the rule of nonliability of the city would apply. The mere fact, therefore, that he was being worked on the streets, rather than at a workhouse or elsewhere, as a penalty for the offense, was a mere incident, and cannot be of controlling influence here. The mere incident of the place of work should not be made to operate a destruction of the well-recognized rule of nonliability in cases of this character.
The only authority cited in the majority opinion which is concededly directly in point (Nisbet v. Atlanta,
I therefore respectfully dissent.
ANDERSON, C. J., and SOMERVILLE, J., concur. *525
