Summary
observing that the identical predecessor to § 11–47–190, Title 37, § 502 (Ala. Code 1940), "prescribes the scope and limit of the liability of municipal corporations"
Summary of this case from Ex parte City of Muscle ShoalsOpinion
4 Div. 242.
May 14, 1942. Rehearing Denied June 11, 1942.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
Action on the case by Daisy S. Pollan against the City of Dothan and another for personal injuries. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Count 3 of the complaint is as follows:
"Plaintiff claims of the defendants the sum of Two Thousand and no/100 ($2,000.00) Dollars as damages for personal injuries received by her on, to-wit, the 6th day of May, 1940, at the Wiregrass Memorial Stadium in the City of Dothan, Alabama, which said stadium is owned by said City and was leased by said City, by and through the Board of City Park Commission of the City of Dothan, Alabama, thereunto lawfully authorized, a copy of which lease is attached to Count Two of the complaint, marked exhibit 'B', incorporated in and made a part hereof, to J. C. Wadlington, the other defendant herein, to be used by him for the playing of baseball games, at which the public was invited to attend and for which a charge was made; and plaintiff avers that at the time the said stadium was leased to the said Wadlington, with knowledge of said City that it was to be so used by the said Wadlington, a wire screen or netting constructed by said City of Dothan and used to protect patrons from being struck by baseballs used in playing such games was defective in that there was an opening or hole in said screen, all of which was known to the said City and the said Wadlington, which defective condition defendants negligently failed to remedy; and while said wire was in such condition, and without any knowledge by the Plaintiff of said defective condition, she, on said date, paid admission and became a patron at a baseball game being played in said stadium, and while sitting behind the said wire screen or netting witnessing said ball game, she was injured by a baseball which was in play by a baseball team using the said stadium for the purpose for which it was leased, the said ball coming through the said opening or hole in said screen, striking Plaintiff on her right breast, fracturing her breast bone, seriously injuring her and thereby causing her physical and mental suffering and forcing her to incur doctor's and hospital bills and expenses of trips to Montgomery, Alabama, for treatment and causing her to lose time from her usual vocation, to her damage aforesaid; and plaintiff avers that all of her said injuries and damage was the proximate result of the negligence herein complained of.
"Plaintiff avers that she duly filed her claim with the said City of Dothan, Alabama, within the time required by law, on to-wit, October 28, 1940, a copy of which is attached to Count Two of the complaint and marked exhibit 'A', incorporated in and made a part hereof as fully as though set forth herein, and that said City has failed and refused to pay the same, wherefore, she sues."
Count 1 and 2 omit the averment that defendants "negligently failed to remedy" the defective condition in said wire screen.
The contract exhibited recites the leasing by the City of Dothan, as lessor, to J. C. Wadlington, as lessee, of:
"That certain park, known as the 'Wiregrass Memorial Stadium' together with the grounds, parking spaces and all property connected with said Stadium or incident thereto.
"For a term commencing April 1, 1940, and terminating October 1, 1940."
The contract further stipulates: "It is hereby mutually agreed that the term of this rental shall be for the dates only during the time specified above as specifically shown Lessee's published Schedule for Games at the Stadium or property hereinabove described. Lessor expressly reserves for right and use of the Lessor all other days not shown in the officially published Schedule of Games to be held, or games to be held at or played upon said property."
W. L. Lee, Alto V. Lee, III, and O. S. Lewis, all of Dothan, for appellant.
In leasing the stadium to Wadlington, the city was exercising a proprietary function. Mobile v. Lartigue, 23 Ala. App. 479, 127 So. 257. If the city was so engaged, it is liable as any other corporation leasing a ball park, and it was the duty of the city to see that the wire screen was reasonably safe for the purpose for which it was constructed and for which it was to be used, and with notice of its defective condition, it was its duty to repair the same; and failing therein, it is liable to plaintiff as set forth in count 3. Wells v. Minneapolis Baseball Athletic Ass'n, 122 Minn. 327, 142 N.W. 706, 46 L.R.A., N.S., 606, Ann. Cas. 1914D, 922; Olds v. St. Louis Nat. Baseball Club, 232 Mo. App. 897, 104 S.W.2d 746. The count clearly shows a duty of the operator of the stadium where a base ball game was being played, and used for the purpose for which it was being leased, who had knowledge of the defective condition of the screen, to have repaired the same, and failing is liable for injuries suffered by the plaintiff. Keys v. Alamo City Baseball Co., Tex.Civ.App., 150 S.W.2d 368; Ratcliff v. San Diego Baseball Club, 27 Cal.App.2d 733, 81 P.2d 625; Olds v. St. Louis Nat. Baseball Club, supra.
T. E. Buntin and Speight Tiller, all of Dothan, for appellees.
The facts alleged do not show the violation of any duty on the part of the city to plaintiff and that the negligence alleged was actionable. Atlantic C. L. R. Co. v. Deavers, 19 Ala. App. 420, 97 So. 844; Hallock v. Smith, 207 Ala. 567, 93 So. 588; Morgan v. Sheppard, 156 Ala. 403, 47 So. 147; Lacey v. Deaton, 228 Ala. 368, 153 So. 650; Abbott v. Alabama Power Co., 214 Ala. 281, 107 So. 811; Glover v. Birmingham T. S. Bank, 239 Ala. 423, 195 So. 259; Jones v. Tennessee Land Co., 234 Ala. 25, 173 So. 233. The complaint shows that at the time and on the occasion in question the city was engaged in its governmental functions as distinguished from corporate functions. Mobile v. Lartigue, 23 Ala. App. 479, 127 So. 257; Warren v. Topeka, 125 Kan. 524, 265 P. 78, 57 A.L.R. 555; Mayor and City Council of Baltimore v. State, 168 Md. 619, 179 A. 169, 99 A.L.R. 680; Wold v. City of Portland, 166 Or. 455, 112 P.2d 469, 133 A.L.R. 1207; Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507. To be good, the complaint should allege negligent performance of a ministerial duty. Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; Code 1940, Tit. 37, § 502; Green v. Birmingham, 241 Ala. 684, 4 So.2d 394; 38 Am.Jur. 271; 43 C.J. 925, 971, 1172. It nowhere appears from the complaint that defendant Wadlington had any connection with, or control of, or anything to do with, the baseball game at which plaintiff sustained her injuries. Averment of material facts must be specific and certain and not left to rest in inference. Morgan v. Sheppard, 156 Ala. 403, 47 So. 147; 36 C.J. 250, § 971. The city of Dothan was engaged in a governmental function and Wadlington was an agent or employe of the city. No duty of Wadlington to remedy the alleged defect appears. Warren v. City of Topeka, 125 Kan. 524, 265 P. 78, 57 A.L.R. 555. Wadlington was not in fact a lessee of the stadium, acquired no estate therein, but was a mere licensee to use the stadium at intervals, and there was no duty on him to repair the defect. 25 Cyc. 640; 36 C.J. 246; Weymouth v. New Orleans, 40 La. Ann. 344, 4 So. 218; Greene v. Seattle Athletic Club, 60 Wn. 300, 111 P. 157, 32 L.R.A., N.S., 713; 22 A.L.R. 628.
This is an action on the case by appellant against the City of Dothan, a municipal corporation, and its lessee Wadlington, for injury alleged to have been inflicted upon her person "at the Wiregrass Memorial Stadium in the City of Dothan, Alabama," by "a baseball which was in play by a baseball team using the said stadium."
The complaint consists of three counts, the court sustained the separate demurrers of the defendants to each of said counts; the plaintiff took a voluntary non-suit and appealed.
There is an absence of averments of negligence in either counts one or two or statement of fact showing a duty owing by either of the defendants to plaintiff and a breach thereof. The pleader in drawing these counts, apparently, proceeded on the idea that the defendant municipal corporation, because of the leasehold, were insurers of the safety of persons entering as invitees, and that they were therefore liable for plaintiff's personal injury, regardless of whether or not it was caused by negligence. That is not the law. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1916F, 797.
The statute, Code of 1940, Title 37, § 502, laying aside liability for property taken, injured or damaged, under § 235 of the Constitution, prescribes the scope and limit of the liability of municipal corporations. It provides: "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." [Italics supplied.]
On demurrer the averments of the complaint can not be aided by intendment, but will be construed most strongly against the pleader. City of Gadsden v. Jones, 227 Ala. 395, 150 So. 359.
There is also an absence of averments, in the third count, that the wire screen was a part of a public building or that the defendants or either of them was in possession using the stadium at the time of the injury, or that they or either of them had any connection with the baseball game being played at the time of plaintiff's injury, or that plaintiff was an invitee of either of said defendants. Non constat, the ball game was being played by trespassers or intruders, without the knowledge of either of the defendants.
Negligence of the person in possession and control of premises at the time of an injury, rather than ownership or the right to possession, is the foundation of liability for such injury resulting from such defects. 38 Am.Juris. 753, § 94. The lease attached as exhibit to count 2, and made a part of said count 3, was only a part time lease.
We are of opinion that the averments of said count 3 fail to show a breach of duty of either of the defendants to plaintiff.
The demurrers were therefore sustained without error, and the judgment is due to be affirmed.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.
On Rehearing.
Opinion modified. Application for rehearing overruled.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.