Summary
holding that a claim that the city was directly liable for taking land for public use without compensation did not arise under §§ 2029 and 2030, Ala. Code 1923, the predecessor statutes to §§ 11-47-190 and -191
Summary of this case from City of Prattville v. CorleyOpinion
6 Div. 479.
October 11, 1934.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
W. J. Wynn and T. A. McFarland, both of Birmingham, for appellant.
All parties participating in a wrongful act, directly or indirectly, whether as principals or as agents, or both, are jointly and severally liable in damages for the wrong done, where injury results. Stapler v. Parler, 212 Ala. 644, 103 So. 573; Alabama Mid. R. Co. v. Coskry, 92 Ala. 254, 9 So. 202; Pilcher v. Smith, 4 Ala. App. 444, 58 So. 672. Where a contractor follows the directions of a civil engineer and a tort is committed, liability is cast upon the civil engineer's principal and the contractor, for there is no such thing as innocent agency in the commission of a tort. Alabama Mid. R. Co. v. Coskry, supra. When the court gave the affirmative charge for the contractor, it was prejudicial error as to this appellant. Ala. Code 1928, §§ 2029, 2030; Montgomery v. McCabe, 6 Ala. App. 559, 60 So. 456. Defendant Donahoo Contracting Company was an independent contractor. 6 McQuillin, Mun. Corp. (2d Ed.) § 2833; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 So. 988; Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721; Harris v. McNamara, 97 Ala. 181, 12 So. 103; United States C. I. P. F. Co. v. Fuller, 212 Ala. 177, 102 So. 25. Where the verdict and judgment in the lower court are patently wrong and unjust, the appellate court will not permit such verdict and judgment to stand. Southern R. Co. v. Grady, 192 Ala. 515, 68 So. 346. Where, as in this case, all the evidence is before it, the appellate court will review the propriety of the affirmative charge for one party defendant. Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Montgomery v. Moon, 208 Ala. 472, 94 So. 337.
Harsh, Harsh Hare, of Birmingham, for appellee.
The statutes requiring joinder of codefendants with the municipality (sections 2029, 2030, Code) do not apply to an action of trespass against the city for taking private property for a public use in the exercise of eminent domain in lieu of condemnation proceedings. In such case the city is initially liable. Ala. Const. §§ 23, 235; Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797. Such statutes are not applicable to a codefendant only jointly negligent. Montgomery v. Ferguson, supra. The purpose of the statutes was to prevent the rendition of judgment against the municipality for culpable neglect in respect to a condition not initially created by it but for the negligent failure to remedy which it is made liable. Birmingham v. Carle, supra. But if the statute did apply, there was no reversible error, for that judgment was rendered in Donahoo's favor on a personal defense. Code, § 2030. If there was error in giving the affirmative charge in favor of Donahoo, it was without injury so far as appellant is concerned, as its liability for taking the property is absolute and unqualified, and it is not entitled to preference in the issuing of an execution to collect the judgment. Const. §§ 23, 235; Sup. Ct. Rule 45.
The action is in trespass.
The theory of the suit is that in widening and deepening a drainage canal carrying the waters of Village creek in the East Lake area of the city of Birmingham, appellee's city lot was encroached upon, and subjected in part to public use without just compensation; damages being sought for the decreased value of the lot by reason of such excavation.
The city of Birmingham and Donahoo Contracting Company, the contractor doing the work for the city, were joined as parties defendant. The trial court gave the affirmative charge in behalf of the contractor, and refused certain charges requested by the city to the effect there could be no recovery against the city unless there was recovery against the contractor. These rulings are assigned for error, and present the question chiefly stressed on this appeal.
Appellant relies upon Code, §§ 2029 and 2030.
Section 2029 provides: "* * * 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 same account by the party so injured."
Section 2030 requires the joinder of such other party as defendant, declares no judgment shall be rendered against the city, unless judgment is also rendered against such other party, or judgment is rendered in the latter's favor on some personal defense; and in case of recovery against both, execution shall first issue against such initial wrongdoer. The effect is to render such third person primarily liable.
These statutory provisions are limited to cases where the injury results from the initial wrongful act of some third person for whose acts the city is not responsible under the doctrine of respondeat superior, and the city's liability arises from negligent failure to remedy the conditions created by such third person. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Birmingham v. Norwood, 220 Ala. 497, 126 So. 619; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25.
Without dispute, in the instant case, the contractor made the excavation complained of pursuant to a contract with the city, according to plans and specifications made by the city, following stakes set by the city engineers, and under their supervision.
The statutes invoked have no application. The city's liability, if any, is a direct and primary one, growing out of the acts of its officers or agents, acting within the line and scope of their authority, under whose guidance and direction the contractor encroached upon and made excavation on the plaintiff's property.
That the contractor alone did the actual work is of no consequence. Neither is the status changed by directions not to enter upon or trespass upon private property in executing the work. Such directions could have no relation to the specific work to be done, nor to the ground where the city laid it out.
True, as argued, there can be no innocent agency in the commission of a tort. Alabama Midland Railway Co. v. Coskry, 92 Ala. 254, 9 So. 202.
It may be conceded, therefore, that if the city was liable, the contractor was also, and that the plaintiff could review on appeal the giving of the affirmative charge in favor of the contractor.
But where the liability is several, as in this case, and not covered by the statutes above considered, one defendant cannot complain of the discharge of the other. The plaintiff could have amended the complaint by striking out the contractor.
The chief issue of fact was whether the city had an easement by dedication covering the ground taken by widening the canal.
Plaintiff's deed, describing his lot by special survey, giving courses and distances from an initial point, called for the canal as the northern boundary. This, accompanied by possession to the canal as then existing, cast upon the city the burden of proving a servitude or easement to enlarge the canal by appropriating additional ground.
It appears the original canal was constructed in connection with the creation of East Lake about 1888. At the time of the improvement here in question, it was approximately 20 feet wide at the top. The city relied upon a map or plat long in the possession and use of the engineering department. Evidence tended to show this to be a blueprint copy of the original plat of the lands of East Lake Land Company and recorded in the probate office. Such old record is not now available.
Evidence for the city further tended to show the width of the canal, dedicated in 1888, as shown by scale on this blueprint, was 50 feet. Plaintiff introduced the recorded plat of the same properties as now appearing on the appropriate record, and said to be a duplication of the old record which had become defaced. By this record, according to the evidence, the canal width was 25 feet or thereabout.
Without prolonging the discussion, it was a question for the jury to determine the width originally dedicated to such canal. If only 25 feet, it is admitted the improvement here involved took several feet off the north end of plaintiff's lot. The depth, 9 to 10 feet, and a bend or curve at this point throwing pressure against this bank at flood times, were, under the evidence, matters to be considered in fixing the amount of damages.
Under well-known rules we find no sufficient ground to disturb the verdict.
Affirmed.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.