Opinion
6 Div. 860.
May 21, 1936.
Appeal from Circuit Court, Jefferson County; J. Russell McElroy, Judge.
John T. Batten and James Esdale, both of Birmingham, for appellant.
When a municipal corporation engages in the business of operating a blacksmith shop, repair shop, carpenter shop, and broom shop, it is not exercising a governmental function but a corporate or ministerial function. Athens v. Miller, 190 Ala. 82, 66 So. 702; Hillman v. Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; Posey v. North Birmingham, 154 Ala. 511, 45 So. 663, 15 L.R.A.(N.S.) 711; Densmore v. Birmingham, 223 Ala. 210, 135 So. 320; Mobile v. Lartigue, 23 Ala. App. 479, 127 So. 257; Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841.
Clarence Mullins and Harvey T. Deramus, both of Birmingham, for appellee.
A municipality is not liable for the alleged wrongful acts of its officers, servants, or employees while engaged in the operation of a governmental function. Engaging in the manufacture, repair, or operation of a street sweeper or street sweeping machine is a governmental function. Densmore v. Birmingham, 223 Ala. 210, 135 So. 320; Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507; Williams v. Birmingham, 219 Ala. 19, 121 So. 14; Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146, 14 A.L.R. 1471; 43 C.J. 972; 19 R.C.L. 1128; Savannah v. Jordan, 142 Ga. 409, 83 S.E. 109, L.R.A. 1915C, 741, Ann.Cas. 1916C, 240; City of Louisville v. Carter, 142 Ky. 443, 134 S.W. 468, 32 L.R.A.(N.S.) 637; Kippes v. Louisville, 140 Ky. 423, 131 S.W. 184, 30 L.R.A.(N.S.) 1161; Huntville v. Ewing, 116 Ala. 576, 22 So. 984. The complaint must show compliance with the statute requiring the filing of a statement of claim. Neither count contains an averment that the sworn statement set out the street and house number where plaintiff resides. Gen.Acts 1915, p. 298; Grambs v. Birmingham, 202 Ala. 490, 80 So. 874; Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; Jones v. Birmingham, 207 Ala. 48, 92 So. 898.
Demurrer was sustained to the several counts of the complaint and there was a nonsuit and appeal.
The ground on which the demurrer was sustained was that the injury and damage sued for was caused while the defendant was engaged in the exercise of a governmental function, and was not at such time and by such act engaged in a corporate and ministerial capacity.
The manufacture, repair, or operation of a street sweeper or street sweeping machine is a governmental function, and injuries resulting therefrom may not be made the basis of recovery in tort and damages. Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320 (involving a street sweeper); Williams v. City of Birmingham et al., 219 Ala. 19, 121 So. 14 (negligent shooting of plaintiff's intestate by a caddy master); City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771 (driver of a trash wagon); Kirk v. McTyeire, Mayor, et al., 209 Ala. 125, 95 So. 361 (injunction to restrain, pendente lite, city authorities from proceeding with their design to have an incinerator constructed); Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507 (damages sustained by a fireman of the city of Birmingham); Harris, pro ami. v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146, 14 A.L.R. 1471 (street sprinkling, as a governmental function); 43 C.J. pages 972, 973, 1174; 19 R.C.L. 1128, § 406; Mayor, etc., of City of Savannah v. Jordan, 142 Ga. 409, 83 S.E. 109, L.R.A. 1915C, 741-747; Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L.R.A.(N.S.) 1005; Johnson v. City of Somerville, 195 Mass. 370, 81 N.E. 268, 10 L.R.A.(N.S.) 715; City of Fort Worth v. Crawford, 64 Tex. 202, 53 Am.Rep. 753.
The trial court was supported by the foregoing authorities in sustaining the demurrer to the several counts of the complaint. The several counts were subject to the demurrer directed thereto for failure of observance of the statute, and failure to specifically indicate the place of the accident. Gen.Acts 1915, p. 298, § 12; Jones v. City of Birmingham, 207 Ala. 48, 92 So. 898; City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7, 52 A.L.R. 657, note; City of Birmingham v. Estes, 229 Ala. 671, 159 So. 201, 97 A.L.R. 114, 120, note. See, also, Ex parte City of Birmingham (City of Birmingham v. Ingram), 212 Ala. 552, 103 So. 599; City of Birmingham v. Ingram, 20 Ala. App. 444, 103 So. 595.
It results from the foregoing there was no error in sustaining the demurrer to the several counts of the complaint, and the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.