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(102 So.) all the furniture back, and the “back pay-i The record is free from reversible error, ments" due then were $48 which was un- and the judgment is affirmed. paid, and for which he sues to recover. The Affirmed. defendant offered no evidence. This property was household and kitchen

ANDERSON, C. J., and SAYRE and furniture, liable from use to depreciate GARDNER, JJ., concur. greatly in value, and, if returned, to be greatly less in value then when purchased; so the parties agreed in the contracts, if the goods are returned, the defendant would CITY OF BESSEMER V. BARNETT. make all back payments. The furniture was

(6 Div. 193.) returned to the vendor by the vendee with

(Supreme Court of Alabama. Oct. 23, 1924. mutual consent of the parties; the defend

Rebearing Denied Nov. 27, 1924.) ant agreeing then orally, as he had previously done in writing, to make all back pay- 1. Municipal corporations Cm763(1)-Duty to ments.

maintain streets reasonably safe. The court tried this cause without a jury. A municipality is under legal duty to mainThere was ample evidence to sustain his tain its streets and sidewalks in reasonably safe finding of facts. It was undisputed under condition for use of public and is liable in tort the written and oral agreements of the par- to do so, especially in view of Code 1907, $

to person thereby injured for negligent failure ties and the evidence that the defendant 1273 (Code 1923, 8 2029). owed plaintiff a balance of $48, then past due, when the furniture was returned, which

2. Municipal corporations 747(2) --Mainte

nance of streets corporate duty. amount he agreed to pay to the plaintiff.

The duty of a municipality to maintain its The court did not err in finding defendant streets in reasonably safe condition is a corwas indebted to the plaintiff in the sum of porate rather than a public duty and its offi$48, and properly rendered a judgment in cers or agents are engaged in a ministerial favor of the plaintiff for it. Montgomery rather than a governmental function in performIron Wks. v. Smith, 98 Ala. 644, 13 So. 525. ance of this service. The court in the judgment rendered taxed 3. Municipal corporations Cm763(1) - Duty to the defendant with the cost.

maintain streets reasonably safe not suspend. [9] The defendant presented to the court a ed during work. written motion to retax two items of the The duty of a municipality to maintain its cost, and averred that the cost bill con- streets in a reasonably safe condition is a contained an item of $5 in favor of W. K. tinuing duty not suspended while street force Schanz for services rendered as a stenogra- for negligent performance as well as nonper

engaged in working streets, and liability exists pher in this cause, which was charged and formance of this duty. taxed in this suit, and an item of cost for a

4. Municipal corporations 747 (2) - Liable library fee, because the respective acts of

for negligent maintenance of streets, whether the Legislature permitting and allowing said negligence of superior or subordinate agent items of cost to be included in the cost bili caused injury. were each unconstitutional and void.

A municipality is liable for injury resulting The court overruled the motion. This from negligent maintenance of streets, whether judgment of the court will be presumed free a subordinate agent or employee or å superior

was person whose negligent act or omission from error until the contrary is shown. Bea- caused the injury. dle v. Davidson, 75 Ala. 494. There was no evidence offered to sustain the facts averred 5. Municipal corporations Om812(6) - Claim in the motion. There is no evidence to show

for injuries substantially complying with stat.

ute suficient. that a fee of $5 for W. K. Schanz for services rendered as a stenographer and a li- pality for injuries as required by Code 1907, 5

The purpose of filing claim against municibrary fee were charged against the defend- 1275 (Code 1923, S. 2031), is to advise municiant in the cost bill in this cause. Neither | pality of accident for purpose of investigation the motion nor the facts averred therein are and adjustment without suit, and is sufficient evidence.

There should be in the record if it complies with statute in such substantial some affirmative proof to sustain the aver-way as to accomplish this purpose, neither techments of the motion. The constitutionality nical accuracy, nor particular negligence relied

on being required. of the respective acts mentioned is not presented by the motion, because there is no 6. Municipal corporations Comm816(11) - Claim evidence to sustain the facts alleged, and the

for injuries held not at variance with comdenial of the motion by the trial court will

plaint. pot be disturbed when it appears no evi- filed under Code 1907, § 1275 (Code 1923, $

A claim against municipality for injuries dence in proof thereof was introduced. Bea- 2031), alleging that street was in "a defective dle v. Davidson, 75 Ala. 494; Torrey v. Bish- and unsafe condition,held not at variance with op, 104 Ala. 548, 16 So. 422; McCord v. allegation in complaint that street was "in a Bridges, 207 Ala. 376, 92 So. 447. '

wet, damp, and defective and unsafe condition." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

7. Witnesses 240(2) - Leading questions sa municipality is under the legal duty to discretionary with court.

maintain its streets and sidewalks in a reaThe allowance of leading questions in ex: sonably safe condition for the use of the amination of witnesses is in discretion of trial public; and for the negligent failure so to court.

do it is liable in tort to a person thereby

injured. This has been declared a corporate, Appeal from Circuit Court, Jefferson Coun- rather than a public duty, and its officers or ty; J. C. B. Gwin, Judge.

agents to be engaged in a ministerial, rathAction for damages by Vivian Barnett, a er than a governmental, function, in the minor, suing by her next friend, Nora Bar- performance of this service. City of Bessenett, against the City of Bessemer. From mer V: Whaley, 187 Ala. 525, 65 So. 542; a judgment for plaintiff, defendant appeals. City of Birmingham v Mulier, 197 Ala. 554, Transferred from Court of Appeals under 73 So. 30. Acts 1911, p. 449, § 6. Affirmed.

In City of Selma v. Perkins, 68 Ala. 148, Bumgardner & Wilson, of Bessemer,

it was said:

for appellant.

"If an individual suffers injury from the negJ. A. Estes, of Bessemer, for appellee.

ligent performance of this duty, the city is answerable to him in damages. Smoot v. Mayor

of Wetumpka, 24 Ala. 112; City Council of BOULDIN, J. The action is for damages Montgomery v. Gilmer, 33 Ala. 116, 70 Am. for personal injuries. The case made by Dec. 562; Albrittin v. Huntsville, 60 Ala. 486, the complaint is, in substance:

31 Am. Rep. 46. If the courts of other states Plaintiff was on a sidewalk on a public find it consistent with their system of jurisprustreet in the city of Bessemer. The munic- dence to adopt a different view of the measure ipality was using a tractor with grader at- of the liability of municipal corporations, it furtached in grading or working the street. A the settled law of this state."

nishes no reason or authority for a change of shelter or structure over the sidewalk was supported by upright posts near the curb [3] This is a continuing duty, not sus. stone. The street-working machinery struck pended while the street force is engaged in and knocked down these supports, causing working the streets. The liability exists the overhead structure to fall upon the plain- for the negligent performance as well as tiff, and inflict the personal injuries for the non performance, of this duty. In the which she sues.

early case of Smoot v Mayor of Wetumpka, The first count ascribes the injury to the 24 Ala, 112, 121, it was said: negligence of defendant in allowing the

"We are of opinion that there is, in such street near the curbstone to remain, for an

cases, no solid distinction between a tortious unreasonable time and with the knowledge neglect of a known, defined duty, which is of of defendant's officers or agents, in a damp, such a character as not to involve governmental marshy, and unsafe condition for the use powers, and the performance of such a duty of the street machinery, and, with such in so unskillful, and negligent a manner as to knowledge, negligently causing or allowing cause particular or extraordinary injury to ansuch machinery to be used at such place, other. The consequences to the party injured and as a proximate consequence the wheels are the same, whether they result from mis

feasance or nonfeasance." of the machine sank into the marshy place, skidded or tilted, and struck the posts, [4] Nor is the case different where the causing the shelter to fall, etc.

superintendent of streets is personally in The second count ascribes the injuries to charge of the work or the person whose the negligence of defendant's officers or negligent act or omission caused the injury. agents, acting within the scope of their em- The test is the service in which the officer ployment, in failing to use due care, skill, is engaged, and not his title or relation to and diligence, with a knowledge of the con- the governing body. There can be no reason dition of the street and sidewalk, and of the for holding a municipal corporation responsiposition of the plaintiff.

ble for the act of a subordinate agent or The evidence tended to support the sev- employee, and not responsible for the act of eral averments of the complaint. It is with the superior engaged in the same service. out dispute that the grader or dresser be Even where a police officer is charged with ing used in working the street was, as the the duty to remedy defects or report same time, being operated by the street superin- | to some other officer, as to such service, he tendent of the city of Bessemer in person. is deemed a ministerial agent, for whose

[1, 2] The chief point stressed in argu- negligence the municipality is answerable ment is that the officers and employees of the in its corporate capacity. City of Birmingstreet department, while engaged in repair- | ham y. McKinnon, 200 Ala. 111, 75 So. 487; ing a public street are public officers or em- 19 R. C. L. 88 391 and 392. ployees acting in a governmental capacity, There is no need now to re-examine the for which act the city is not liable. Is has ground on which the liability is imposed, long been the settled law of Alabama that I nor to differentiate the various cases of non

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(102 So.) liability for official action. It is part of the ments to such claims, nor the date when aljurisprudence of Alabama, long established, lowable. and now recognized by statute. Code 1923, [7] The allowance of leading questions $ 2029; Code 1907, § 1273.

in the examination of witnesses is in the disThe testimony touching the existence of cretion of the trial court. the marshy place in the street and its long

The judgment of the court below is afcontinuance, in connection with evidence of firmed. working the street from time to time, made

Affirmed. it a question for the jury whether the officers and agents knew of such condition,

ANDERSON, C. J., and SOMERVILLE not merely ought to have known it. Al

and THOMAS, JJ., concur. though the complaint went farther than necessary in averring actual knowledge, the evidence warranted a refusal of the affirmative charge for defendant on that issue.

UNITED STATES CAST IRON PIPE &

FOUNDRY CO. v. FULLER. (6 Div. 82.) Section 1275 of the Code of 1907 (section 2031, Code 1923) required, as a condition (Supreme Court of Alabama. Oct. 16, 1924. precedent to recovery, the filing with the Rehearing Denied Nov. 27, 1924.) clerk of a sworn statement of the claim. 1. Master and servant w 361-Count hold not This statement must state "substantially

demurrable as showing plaintiff to have been the manner in which the injury was receiv defendant's employee, and within Compensaed, and the day and time, and the place tion Act. where the accident occurred, and the dam Count of complaint alleging that plaintiff ages claimed." The question here raised was working in defendant's clay pit, not as as to the sufficiency of the claim filed is di- employee of defendant, but by his invitation and rected to its statement of the manner in tiff to have been defendant's employee, whose

consent, held not demurrable as showing plainwhich the injury was received.

exclusive recourse was under Workmen's ComThe statement filed alleged that the street pensation Act (Laws 1919, p. 206). was in "a defective and unsafe condition,” 2. Master and servant w316(1)-One conand was a proximate consequence thereof the

tracting to furnish olay held independent wheel of said scraper or grader next to the contractor. sidewalk sank, or slid, or tilted toward the One contracting to furnish clay, for which sidewalk and struck and caused the said he was paid by load, to mud mill of foundry awning or shelter to fall,” etc. The com company, which saw that clay delivered was of plaint alleged the street was "in a wet, right sort, required, in general way, that enough damp, and defective and unsafe condition," be furnished to keep mill at work, and employed etc. The point made is that there is a vari. engineer, who occasionally looked over digging

of clay, held independent contractor. ance between the claim and the complaint, and that the quoted statement from the claim 3. Negligence 52-Employee of independent is too general,

contractor held entitled to warning, of dan15, 6] The purpose of the filing of the

ger known to owner of premises. claim is to advise the municipality of the clay pit for independent contractor held not

Laborer injured by cave-in while working in accident for the purpose of investigation bare licensee but either invitee or licensee and adjustment without suit. The claim is serving interest of pit owner, which owed him sufficient if it sets out the matters named in duty to warn him of any danger, of which it the statute in such substantial way as to knew or should have known, and of which he accomplish this purpose.

Technical accuracy is not required, neither is it necessary 4. Negligence Ono 52-Duty to warn invitee or to set out the particular negligence relied upon. For example, it would have been Duty of owner of premises to warn invitee sufficient here to state that the street force

or licensee serving owner's interest varies acin operating the street machinery knocked cording to character of danger, nature of the awning down upon plaintiff at the time premises, and circumstances under which they and place named. City of Birmingham v.

are to be visited. McKinnon, 200 Ala, 111, 75 So. 487. There 5. Mines and minerals Ows 118Mine owner's was no material variance between the claim

duty to keep mine reasonably safe extends filed and the complaint in this regard. The

only to conditions existing when turned over amendment to the claim filed after the ex

to contractor. piration of six months from the date of the

Duty mine owner to employee of indeinjury, ascribing the injury to the negligence pendent contractor, working therein to keep it

in reasonably safe condition, extends only to of the city in suffering the awning to be conditions existing when turned over to conmaintained over the sidewalk, was not count-tractor, not those arising from changes caused ed upon in either count of the complaint, No by progress of work contractor undertook to question arises as to the propriety of amend. I do.

w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

was unaware.

ed * licensee depends on circumstances.

to.

6. Negligence Om 121(1)-Burden on contrac-16 to 18 inches deep. The depth of the clay, tor's employee to show owner's negligence in which lay between the top soil and an uninviting him.

derlying stratum of rock, is stated as being Burden was on independent contractor's 6 to 9 feet. Plaintiff, appellee, was at worķ employee, suing owner of clay pit for injuries for Wilkinson, loading clay into a wagon, from cave-in, to show defendant chargeable when the adjacent bank caved in upon him, with negligence in inviting plaintiff therein.

causing the injuries on account of which 7. Negligence Om 32(1)-Owner of premises be brought this action. held not negligent in inviting contractor's em

[1] The burden of defendant's demurrer ployee into dangerous place.

Owner of clay pit, in which laborer, who had to the third count of the complaint--all othworked for independent contractor for about ers having been eliminated—was that it three months, was injured by cave-in, danger of showed plaintiff to have been an employee of which was indicated by crack in top soil, ob- defendant, and so that plaintiff's exclusive served, if at all, on day before accident, held recourse was under the Workmen's Compennot negligent in inviting contractor's employee sation Act (Laws 1919, p. 206). This demurinto dangerous place.

rer was overruled, and properly so. The 8. Negligence ém50–Owner of clay pit held not language of the count is: negligent in not re-examining dangerous part "Plaintiff further alleges that *

he before return of contractor's employee there.

was engaged in work in the defendant's said

clay pit, not as an employee of defendant, but Owner of clay pit, to dangerous part of by invitation of the defendant, and with the which independent contractor's employee re- defendant's consent, and while so working," turned after working in another part for sep. etc. eral days, held not negligent in not re-examining premises and warning employee of danger This language denies the demurrer. of cave-in.

[2] The evidence showed without dispute 9. Negligence em52—Duty of owner of prom the time of the accident which resulted in

or contrary inference that plaintiff was, at ises to warn contractor's employees stated.

To obligate owner of premises to warn con his injury, employed by Wilkinson as a day tractor's employees of danger it must appear

laborer. Wilkinson's contract was to furthat owner was bound to do so by agreement nish clay to defendant's mud mill, for which with contractor or assumed obligation with he was paid by the load. Defendant saw to knowledge of contractor or his employees, and it that the clay delivered to its mud mill that they relied on his doing so.

was of the right sort; that is, contained not 10. Negligence Om50—Finding owner under. too much dirt, not too much of the top soil. took to keep operation of clay pit safe or that Defendant had in its employment a safety contractor's employés relied thereon not engineer who overlooked all the operations warranted.

conducted by defendant in the manufacture That owner's engineer looked over opera- of pipe, and this engineer occasionally looked tion of clay pit by contractor held insufficient to over the digging of clay by Wilkinson. Dewarrant finding that owner undertook to keep rendant required, in a general way, that operation of pit safe for contractor's employés, Wilkinson furnish enough clay to keep its or that they relied, or had reason to rely, on such undertaking so as to charge owner with mill at work. Otherwise than as stated de negligence because engineer observed danger- fendant had nothing to do with Wilkinson's ous condition.

operations in the pit. These facts, very

clearly in our judgment, establish the conAppeal from Circuit Court, Jefferson Coun-clusion that Wilkinson was an independent ty, Bessemer Division; J. C. B. Gwin, Judge. contractor. Connors-Weyman Steel Co. V. Action for damages for personal injury

Kilgore, 189 Ala, 643, 66 So. 609; Hubbard by Uriah Fuller against the United States

v. Coffin & Leak, 191 Ala. 494, 67 So. 697;

Sloss-Sheffield Co. v. Edwards, 195 Ala. 376, Cast Iron Pipe & Foundry Company. Judg. ment for plaintiff, and defendant appeals.

70 So. 285, and cases cited. Reversed and remanded.

[3] It is alleged in the complaint that

“The said clay pit was dangerous and liable to Brenton K. Fisk, of Birmingham, for apcave upon a person employed as plaintiff was, pellant.

and which danger was not known to the plainPerry, Mims & Green, of Bessemer, and tiff, but which danger and the ignorance thereof Black, Harris & Foster, of Birmingham, for of plaintiff was known to defendant, or by the appellee.

exercise of reasonable diligence should have

been known to the defendant, and the defendant SAYRE, J. Appellant had a contract with negligently failed to warn the plaintiff of such one Wilkinson by which the latter was to danger, and as a proximate consequence of such mine and deliver to appellant clay for ap- was in a place dangerous to such cave, or may

negligence on the part of defendant plaintiff pellant's mud mill. The property from be liable to occur, and while in such position which the clay was taken was the property such cave-in did occur, casting the earth and of appellant. The clay lay under a top soil clay upon plaintiff, and the injuries alleged,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests apd Iudexes

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(102 So.) .. which was a proximate consequence of, Judge Cooley in Samuelson v. Cleveland the defendant's negligence in failing to warn Iron Mining Co., 49 Mich. 164, 13 N. W. plaintiff of such danger."

499, 43 Am. Rep. 456, where authorities Plaintiff had been in the employment of were cited and the principle declared to be Wilkinson for some time. The accident hap- very just and very familiar. Frequently we pened late in the afternoon of Tuesday. encounter the formula: Work at the particular place where plain. “The owner or occupant of premises, who tiff was hurt had been suspended on the pre-induces others to come upon it by invitation, exceding Thursday. When plaintiff was sent press or implied, owes them the duty of using back to work at that place, under instruc- reasonable or ordinary care to keep the premistions by Wilkinson he worked, not on the es in a safe and suitable condition so that they face of the surrounding bank of clay, but on posed to danger.

will not be unnecessarily or unreasonably ex

29 Cyc. 453; 21 Am. & the bottom of the pit. His work on that oc- Eng. Enc. Law (2 Ed.) 471, cited in Tenn. Co. casion, it seems, had nothing to do with the l.v. Burgess, supra. caving in of the bank. At that point the pit was 7 or 8 feet deep, and the clay had been This court in the Connors-Weyman Case, dug back under the surface about 18 inches, supra, as the result of cases consulted and leaving an overhang of that much. We cited, has said quote from appellee's brief:

"that a mine owner, who, for some benefit to "The testimony all showed that this was not himself, procures the working of his mine, even in itself an apparently dangerous condition. It by an independent contractor, and therefore Fould appear ordinarily strong enough to stand impliedly invites such contractor and his emwithout falling But it appeared upon this oc- ployees to enter and use such mining premises, casion and at this place that there was on the is liable to them for personal injuries resulting surface a crack about 2 inches wide and several | from any condition of the premises which is ininches deep, about 18 inches from the edge of herently dangerous, if the owner had knowledge the soil overbanging this pit. The crack was or notice of such condition and the contractor not observable by one in the pit. It was shown or his employees had not." that the defendant's safety engineer was at that point that very morning, looking around and [4] But, as this court observed in Tenn. talking and attending to his duties of protecting Co. v. Burgess, supra: the people who were upon the premises of the

"It is obvious that the duty must vary acdefendant. He testified that there was no such crack there. He further testified that, if there cording to the character of the danger, the nahad been such a crack there, it would have been ture of the premises, and the circumstances dangerous. He further testified that, if he had under which they are to be visited." seen any such crack there, he would have notified the employees in the pit."

(5-7) In that case it was noted that the

evidence went to show that it was the duty Plaintiff testified that he did not know of of the mine owner to inspect the roof of the the crack; that he was ignorant of the dan- mine as the work of mining progressed-upger; and that he was not warned against it. on what consideration does not appear. But In these circumstances the bank of clay cav- in the later case of Sloss-Sheffield Co. v. Eded in, falling on plaintiff.

wards, supra, a case in which the plaintiff, Whether plaintiff be considered as an in- injured in the progress of mining operations, vitee of defendant (Tenn. Co. v. Burgess, 158 was employed by an independent contractor, Ala. 525, 47 So. 1029) or a licensee serving as here, this court held—and very correctly, in part the interest of defendant (Sloss- as we think-that the duty which the owner Sheffield Co. v. Edwards, 195 Ala. 376, 70 owed to the employees of the contractor to So. 285), -clearly he was not a bare licensee keep its mine in a reasonably safe condition defendant's duty to him has been thus extended only to conditions existing whe stated by the eminent Judge Cooley in Pow the mine was turned over to the contractor ers v. Harlow, 53 Mich. 507, 19 N. W. 257, for mining, and not to conditions arising out 51 Am. Rep. 154:

of changes caused by the progress of the "A person giving such a license, especially work the contractor undertook to do. Other when he gives it wholly or in part for his own cases to the same effect were there cited. interest as was the case here, and thereby in- Here, as was the case in Samuelson v. Clevevites others to come upon his premises, as-land Iron Mining Co., supra, we search the sumes to all who accept the invitation the duty record in vain for any evidence that defendto warn them of any danger in coming, which he knows of, or ought to know of, and of which ant is chargeable with negligence in inviting they are not aware."

miners into a dangerous mine. Appellee's

brief assumes that the burden of proof as to This statement of duty in cases like this this was on defendant, but there can be no has been approved by this court in Sloss doubt that in this, as in all material reIron & Steel Co. v Tilson, 141 Ala. 161, 37 So. spects, the burden rested upon plaintiff to 427, and Republic Iron & Steel Co. v. Luster, make out his case. The accident causing 192 Ala. 501, 68 So. 358. This principle had the injury to plaintiff happened in the latbeen previously examined at length by ter part of November, 1922. Defendant had

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