Green v. City of Birmingham

THOMAS, Justice.' The suit was against the city for wrongful death. The court gave' the affirmative charge for the defendant. This is the primary question for consideration under the rule that obtains. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. In City of Birmingham et al v. McKinnon, 200 Ala. 111, 75 So. 487 (a case of obstructions next to sidewalk), this court held that “generally, municipal corporations are not liable for police officers’ negligence; but this rule does not apply where duty to remedy or report defects; is imposed upon them, in respect to which they are mere ministerial agents, for whose acts the municipality is answerable in; its corporate capacity.” In City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, the suit was for extraneous, substance on the sidewalk. In City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23, 24, the injury was caused by negligence in the maintenance of the street and the court said: . “Even where a police officer is charged with the duty to remedy defects or report same to some other officer, as to such service, he is deemed a ministerial agent, for whose negligence the municipality is answerable in its corporate capacity. City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; 19 R.C.L. §§ 391 and 392. “There is no need now' to re-examine the ground on which the liability is imposed, nor to differentiate the various cases of nonliability for official action. It is part of the jurisprudence of Alabama, long established, and now recognized by statute. .Code 1923, § 2029; Code 1907, § 1273.” The statute referred to (Code of 1923, § 2029, Code 1940, Tit. 37, § 502) and held a corporate matter rather than a public matter is: “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 employe 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 some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council, and whenever the city or town shall be made liable to an action for damages, by reason of the unauthorized- or wrongful acts, or the negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be ‘liable to an action on the samé account by the party so injured.” *687 See Brooks v. City of Birmingham, 239 Ala. 172, 194 So. 525 and Code of 1940, Title 37, § 502 and authorities. In Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89, the suit was for street improvements, and in Robbins v. City of Sheffield, 237 Ala. 674, 188 So. 874, 875, touching the construction of an electric distribution system, the definitions of governmental and municipal functions are thus stated: “ ‘Governmental functions’ are those conferred or imposed upon a municipality as a local agency of limited jurisdiction, to be employed in administering affairs of the state, and promoting the public welfare generally. “When properly applied to municipalities, the term ‘governmental functions’ should be limited to legal duties imposed by the state upon the municipality, which the municipality may not omit with impunity but must perform at its peril. * * * “ ‘Municipal functions’ are those granted for specific benefit and advantage of urban community embraced within a municipality’s boundaries.” As we understand our cases police duties are held to be governmental. Hillman v. City of Anniston, 216 Ala. 661, 114 So. 55; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169. Under the undisputed evidence in this case the tort was committed' in the discharge of a governmental duty, act or function, and was not done in the neglect to discharge a ministerial duty of a city official. Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320. It results from this holding that the affirmative charges requested in writing by the defendant were properly given. The judgment of the circuit court is affirmed. Affirmed. GARDNER, C. J., and BROWN and LIVINGSTON, JJ,, concur.