The case is here upon the ruling sustaining plea No. 3 as against apt grounds of demurrer. The complaint and plea No. 3 appear in the report of the case. The one legal question presented on this appeal is: Is a municipal corporation liable under the homicide act for the death of a city convict by wrongful act of the officer or agent guarding and superintending the work of the prisoner in the repair and maintenance of the streets of the city?
As regards the public making use of the streets of a city, it has been the long-declared law of this state that in the maintenance of public streets and sidewalks the municipality is engaged in a corporate rather than purely governmental function. As a result the municipality is liable for injuries resulting from defects in the streets due to negligence of its officers and agents. This duty to the public to maintain the streets in a safe condition is not suspended at a time and place where the city, by its own force of labor and superintendence, is engaged in street work, and hence it is liable for injuries to persons in the proper use of the street from negligence of the street force while so engaged. City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85; City of Birmingham v. Muller, 197 Ala. 554, 73 So. 30; City of Selma v. Perkins, 68 Ala. 148; Albrittin v. City of Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Smoot v. Mayor of Wetumpka, 24 Ala. 112. See, also, 6 McQuillin on Corporations, § 2634.
Following up this doctrine that the officers and agents engaged in street work represent the municipality in its corporate or business character, it was held in City Council v. Harris, 101 Ala. 564, 14 So. 357, that the city is liable under the Employers' Liability Act for the death of an employee while working in a pit preparing gravel for use upon the streets, and occurring under circumstances covered by the act.
The case of City of Birmingham v. McKinnon, 200 Ala. 111,75 So. 487, recognizes the rule that, if a police officer has committed to him concurrent duties relating to the maintenance of streets, in the performance of these duties he acts in a ministerial way, as agent for the city in its corporate capacity, and the municipality is liable for injuries resulting proximately from his failure of duty.
In general, the liability of a municipal corporation for the torts of its officers or agents, whether from malfeasance or misfeasance, in the construction or maintenance of streets, is the same as in the construction or operation of waterworks, light plants, and other public utilities. Athens v. Miller,190 Ala. 82, 66 So. 702; Posey v. North Birmingham, 154 Ala. 511,45 So. 663, 15 L.R.A. (N.S.) 711; Darby v. Union Springs,173 Ala. 709, 55 So. 889.
On the other hand, under the general principle of immunity of government agencies from liability for the torts of its officers, there is no liability for the negligence or wrongful act of police officers in arresting or guarding prisoners. Dargan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505. Nor for failure to properly police the town in the protection of the citizen from violence. Campbell v. Montgomery, 53 Ala. 527, 25 Am. Rep. 656. Nor for failure to abate a nuisance. Bieker v. Cullman,178 Ala. 662, 59 So. 625. Nor in the maintenance of a fire department. Long v. Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507. Nor in the enforcement of sanitary and public health measures. Tuscaloosa v. Pitts, 209 Ala. 635, 96 So. 711.
Looking to the authorities in other states, they are practically of one accord in holding nonliability for negligent injury to prisoners due to defective or insanitary prisons, confinement with drunken, vicious, or infected *Page 524 fellow prisoners, or exposure to cold or fire therein. The same rule applies to workhouses and injuries to prisoners put to work as a penalty for offenses; such work being incidental to the execution of the sentence. The rule is based upon the general doctrine of immunity for the wrongful acts of officers engaged in public governmental duty. In such case the doctrine of respondeat superior is not recognized. 19 R. C. L. p. 1126, § 404, and notes 4, 5, and 6; 6 McQuillin on Corp. § 2642, and notes, pp. 5453 to 5456; 4 Dillon on Mun. Corp. § 1656, note, p. 2886; Nisbet v. Atlanta, 97 Ga. 650, 25 S.E. 173; Ulrich v. St. Louis, 112 Mo. 138, 20 S.W. 466, 34 Am. St. Rep. 372; Jackson v. Owingsville (Ky.) 121 S.W. 672, 25 L.R.A. (N.S.) 180, and note.
The case of Nisbet v. Atlanta, 97 Ga. 650, 25 S.E. 173, as to facts, is practically on all fours with the case at bar. Neither this case, nor any other coming to our attention, has discussed the dual relation occupied by the police officer in custody of the prisoner, and at the same time the corporate agent in working the prisoner at a corporate rather than governmental enterprise. It is generally held as in Alabama that in the prosecution of corporate rather than strictly governmental undertakings the doctrine of respondeat superior does apply in favor of third persons or employees injured or killed as the proximate result of the wrongful act of such agent acting in the line of his employment.
The doctrine of immunity in favor of municipal corporations is grounded in public policy. Mr. McQuillin, § 2642, speaks of the injustice of the rule announced as to prisoners in jails and workhouses. We are not inclined to extend it. We can see no basis of justice for holding the municipality liable for the acts of its agents engaged in the construction or operation of public works, or other corporate function, at the suit of a third person free to avoid danger, or an employee who voluntarily engages in the service, and deny the same protection to one put to involuntary labor under like conditions.
We therefore hold that, where the prisoner is sentenced to work upon an enterprise defined by our law as corporate in character, the municipality is liable for injury or death proximately resulting from the wrongful act of its agent in the course of such employment; that, if injury results from the negligence or wrongful act of the superintendent of the work, and the prisoner's employment therein, the municipality is not exempt because such corporate agent was also a police officer having custody of the prisoner.
The trial court erred in overruling the demurrer to plea No. 3.
Reversed and remanded.
SAYRE, THOMAS, and MILLER, JJ., concur.