City of Mobile v. Havard

268 So. 2d 805, 289 Ala. 532, 1972 Ala. LEXIS 1102

• Court: Supreme Court of Alabama
• Decided: September 28, 1972
• Docket: 1 Div. 689
• Status: Published

Opinions

SOMERVILLE, Justice.

Appellee Ruby W. Havard as administratrix of the estate of Henry N. Havard, deceased, brought an action in the Circuit Court of Mobile County, Alabama against eight defendants seeking damages for the death of her husband Henry N. Havard who died as the result of an automobile accident in the Bankhead Tunnel. The initial complaint was amended and various defendants dismissed so that by the time of trial the complaint consisted of two counts numbered 5 and 6 and the City of Mobile and Palmer & Baker Engineers, Inc. were the only remaining defendants.

On October 17, 1968 Henry N. Havard was driving his automobile eastwardly through the Bankhead Tunnel in Mobile, Alabama. He reached a point approximately midway through the tunnel and stopped his car behind a long line of cars when an overloaded soybean truck with defective brakes came down the western incline out of control and crashed into the rear of the Havard automobile. The impact set off a chain reaction ultimately piling up ten vehicles. Gasoline fires broke out including one at the front and one at the rear of the Havard car. A fire alarm was sent to the Mobile Fire Department located just outside the western tunnel entrance and some of the occupants of the involved vehicles with several tunnel guards began fighting the fire with equipment maintained in the tunnel. Testimony indicated that their efforts were ineffectual due to defects or inadequacies of the equipment. The Mobile Fire Department had equipment and men at the scene within minutes and the fires were promptly extinguished. Not until the firemen arrived was it discovered that Havard was trapped, semi-conscious, in his smoke-filled automobile. He had received severe burns and respiratory tract injury and died three days later.

In her complaint the plaintiff alleged that her husband’s death was proximately caused by the defective and inadequate equipment maintained in the Bankhead Tunnel. Plaintiff’s theory against the City of Mobile was that it had negligently maintained its fire equipment located in the tunnel and that such negligence had proximately caused her husband’s death. The driver and the owner of the truck and the owner of the load of soybeans on the truck were originally made parties defendant but were voluntarily stricken by the plaintiff before trial. Plaintiff asserts liability against Palmer & Baker Engineers, Inc. (Palmer & Baker) on the ground that it, as the firm employed by the City of Mobile to inspect the Bankhead Tunnel and its equipment on an annual basis, either negligently failed to ascertain such inadequate and defective condition of the firefighting equipment or negligently failed in its reports of such inspections to call attention to said condition.

The case was tried for six days and resulted in a judgment on a jury verdict against the joint defendants in the amount of $75,000. Motions for new trial being denied, both defendants now appeal.

Appellee insists that the appellant City of Mobile waived all or many of its assignments of error by failure to comply with the provisions of Supreme Court Rule 9. Appellee also contends that this appellant has waived all of its assignments of error because it failed to include in its brief a summary of the oral testimony relevant to its arguments as required by Rule 9. With this contention we cannot agree. There are two appellants in this cause and it must be noted that appellant City of Mobile joined in this appeal after it was instigated by the other appellant, Palmer & Baker. Appellant Palmer & Baker included a summary of the relevant testimony in its brief. Appellant City of Mobile supplemented that summary as necessary for its arguments in its brief. We hold that this was sufficient to comply with the purpose and intent of Rule 9. Appellee also argues that appellant City of Mobile waived those assignments of error which it did not specifically argue in its brief. We agree with appellee on this argument, and in accord with Rrrle 9 have not considered any of said appellant’s assignments of error which were not argued in its brief.

The appellant City of Mobile, hereinafter referred to as the City, argues in its first proposition of law, which encompasses its assignments of error 2 through 8, that the City is governmentally immune from suits arising out of maintenance or operation of fire-fighting equipment. Demurrers of the City to counts 6 and 7 based on its claimed immunity were overruled and its pleas raising the same issue were demurred or charged out. In support of its contention the City relies primarily on the case of Long v. City of Birmingham, 161 Ala. 427, 49 So. 881. In that case the plaintiff Long had been injured when he fell from an extension ladder while in the performance of his duties as a fireman for the City of Birmingham. Long brought suit against said city under the provisions of the Employer’s Liability Act. The trial court sustained demurrers to the complaint based on the defendant’s claim that in furnishing fire-fighting apparatus and operating its fire department, the city was performing a governmental function and therefore immune from tort liability.

The appellee’s answer to the above argument is Title 37, § 502, Code of Ala. 1940 (Recompiled 1958), which places liability on a municipality for anjr injury which occurs through the neglect, carelessness, or failure to remedy any defect in the streets, public ways, etc., after either actual or constructive notice of such defect.

It is undisputed that the roadway through the Bankhead Tunnel is part of the Mobile street system. Therefore the issue to be resolved is whether or not the fire-fighting equipment maintained in the tunnel is in fact a part of the street or public way so as to attach liability on the City under § 502, supra, for any defect in the equipment.

We do not think it was the intent of the legislature to give § 502 such a broad application. In Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689, this court recognized the necessity of distinguishing between defects in a street for which a municipality may be held liable, and those for which it may not. We there refused to call a defective traffic light a defect in the street and recovery against the City of Montgomery was denied. Our holding was based on § 502 being inapplicable because the maintenance of traffic signals is an immune governmental function and not a part of the maintenance of streets, a non-immune ministerial function. We think the same distinction between ministerial and governmental functions must be made here and that fire-fighting equipment stored in the tunnel is no more a component or an integral part of the street running through said tunnel than is a traffic light. It follows that a defect in such equipment is not a defect in the street for which the City can be held liable under the provisions of § 502. The remaining authorities cited by appellee on this point are not applicable since each dealt with physical defects in streets or sidewalks themselves or obviously component parts thereof.

We conclude that the complaint as last amended failed to state a cause of action against the defendant-appellant City of Mobile and that the trial court erred in failing to sustain said appellant’s demurrer which properly raised the issue of governmental immunity.

The merits of the other assignments of error of said appellant City of Mobile need not be considered here since the judgment against it must be reversed in accord with this opinion.

The appellant Palmer & Baker raises two principal questions in its numerous assignments of error: first, whether plaintiff’s complaint is sufficient against this appellant’s demurrer; and second, whether the evidence presented at trial was sufficient to submit the case to the jury. Said demurrer challenged the complaint as failing to state a cause of action against the defendant Palmer & Baker in that it did not establish a duty owed by said defendant to plaintiff’s intestate, nor did it disclose the breach of any duty which proximately caused the injury complained of in the complaint.

The law is clear that in all cases founded on actionable negligence, three elements are necessary to the sufficiency of the complaint: (1) the existence of some duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to fulfill that duty; and (3) an injury to the plaintiff proximately caused from such failure of the defendant. When all of these elements are brought together, we have actionable negligence. The absence of any one of them renders a complaint bad or the evidence insufficient. Stokely-Van Camp, Inc. v. Ferguson, 271 Ala. 120, 122 So.2d 356; Alabama Great Southern R. Co. v. Green, 276 Ala. 120, 159 So.2d 823; Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274.

In the complaint now before us, the pertinent allegations to show the existence of this defendant’s duty are: that defendant Palmer & Baker was under contract with the City of Mobile to conduct annual inspections of the Bankhead Tunnel, including the fire-fighting equipment located therein, and to make its recommendations to the City for any repairs, replacements, additions, etc., which were in its opinion required for the continued operation of the tunnel; that this defendant knew that members of the public would be driving through said tunnel and knew that they could be seriously injured or killed if the defective condition in the fire equipment was not remedied; and that this defendant negligently failed to determine the defective condition of the fire equipment, or, if they did so determine, failed to report same to the City of Mobile.

The defendant Palmer & Baker was under contract with the City of Mobile to conduct annual inspections of the Bank-head Tunnel. There is nothing in the complaint to show that this defendant did not comply with the full intent and letter of said contract. Negligence is averred merely as a conclusion of the pleader and no facts arc presented to show a duty this defendant owed to plaintiff’s decedent. There is nothing to show that if the firefighting equipment had been in perfect condition that Henry Havard’s injuries would have been any less severe. We are of the opinion that the facts alleged by plaintiff fail to show that this defendant owed any duty to plaintiff’s decedent, the breach of which resulted in his death. Because the complaint fails to state facts out of which the duty of this defendant arises, the grounds of the demurrer taking that point should have been sustained.

As stated above, the second question raised by the demurrer is: the sufficiency of the complaint to show that this defendant’s alleged negligence was the proximate cause of the injury and death of plaintiff’s decedent. The pertinent allegations in the complaint are: that plaintiff’s decedent was involved in an accident in the Bank-head Tunnel which resulted in his automobile being set on fire; and that as a direct and proximate result of defective and inadequate fire-fighting equipment and the concurring negligence of the defendant, Palmer & Baker, the fire continued to blaze and was not promptly extinguished and that the death of plaintiff’s decedent resulted.

This court has previously held that where each count of the complaint shows on its face that some independent agency has intervened and has been the proximate and immediate cause of the injury, it is the duty of the trial court to sustain a demurrer to the complaint. Kilgore v. Birmingham Ry., Light & Power Co., 200 Ala. 238, 75 So. 996; Smith v. Alabama Water Service Co., 225 Ala. 510, 143 So. 893; Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342.

The complaint now before us clearly shows on its face that an independent agency, an overloaded soybean truck with defective brakes, intervened to disrupt the causal connection between this defendant’s alleged negligence and the death of plaintiff’s decedent. The soybean truck was the immediate and proximate cause of the accident and the decedent’s death. The alleged negligence of this defendant was no more than a remote cause. We therefore hold that the trial court erred in overruling the demurrer of defendant Palmer & Baker for the reasons stated.

As mentioned previously, defendant-appellant Palmer & Baker also assigns as error the trial court’s refusal to give the affirmative charge for this defendant as requested, the asserted grounds being that the evidence was insufficient to submit the case to the jury in at least two particulars: (1) the evidence fails to show that this defendant’s alleged negligence was the proximate cause of plaintiff’s injury, and (2) the evidence clearly shows that the proximate cause of the death of plaintiff’s decedent was an independent, intervening agency, the soybean truck, for which this defendant can in no way be responsible.

We have held on several occasions that when the facts presented at trial are such that reasonable men must draw the same conclusion, the question of proximate cause is one of law for the courts to determine. City of Birmingham v. Latham, 230 Ala. 601, 162 So. 675; Morgan v. City of Tuscaloosa, supra; King v. Winslett, 287 Ala. 98, 248 So.2d 566.

For an act to constitute actionable negligence, there must be not only some causal connection between the negligent act complained of and the injury suffered, but also the connection must be by a natural and unbroken sequence, without intervening, efficient causes, so that, but for the negligence of the defendant, the injury would not have occurred. The negligence must not only be a cause, it must be the proximate cause of the injury. Western Railway of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388.

Where it is determined that some prior negligent act merely created the condition or gave rise to the occasion and after the creation of said condition an intervening, independent agency produces an injury, the party guilty of the first negligent act is not liable because his negligence was but a remote cause of the injury. Louisville & N. R. Co. v. Maddox, 236 Ala. 594, 13 So. 849, 118 A.L.R. 1318; Watt v. Combs, 244 Ala. 31, 12 So.2d 189, 145 A.L.R. 667. And, as said by this court in Garrett v. Louisville & N. R. Co., 196 Ala. 52, 71 So. 685, 686:

“ ‘The law, in its practical administration in cases of this kind, regards only proximate or immediate, and not remote, causes, and, in ascertaining which is proximate and which remote, refuses to indulge in metaphysical niceties. Where, in the sequence of events between the original default and the final mischief, an entirely independent and unrelated cause intervenes, and^ is of itself sufficient to stand as the cause of the mischief, the second cause is ordinarily regarded as the proximate cause and the other as the remote cause.’ Atchison, etc., Ry. Co. v. Calhoun, 213 U.S. 1, 29 Sup.Ct. 321, 53 L.Ed. 671; Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256.”

However negligent a party may have been in some particular, he is accountable only to those who are injured as a proximate result of such negligence. Where some independent agency intervenes and is the immediate cause of the injury, the party guilty of the prior negligence is not liable. The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces the injury. Smith v. Alabama Water Service Company, supra; Williams v. Wicker, 235 Ala. 348, 179 So. 250; Mobile City Lines, Inc. v. Proctor, supra.

We are of the opinion that upon the application of the above principles of law, the trial court should have granted the request of defendant Palmer & Baker for the affirmative charge. Upon a careful review of the evidence presented at trial we must conclude that the negligence of this defendant was no more than a remote cause of the injury complained of in plaintiff’s complaint. The proximate cause was the collision between the decedent’s automobile and the soybean truck. Such was an independent, . intervening cause for which defendant Palmer & Baker cannot be held legally responsible. The judgment against defendant Palmer & Baker must therefore be reversed. In light of the foregoing this defendant’s other assignments of error need not be considered.

For the reasons set forth in the above opinion the judgment which the trial court entered in favor of the plaintiff and against both defendants must be reversed.

Reversed and remanded.

COLEMAN, HARWOOD, and McCALL, JJ., concur. MADDOX, J., concurs specially. HEFLIN, C. J., MERRILL and BLOOD-WORTH, JJ., concur in part and dissent in part.