Averback v. Y. M. C. A. of Covington

• Decision Date: 23 June 1933
• Citation: 250 Ky. 34,61 S.W.2d 1066
• Parties: AVERBACK v. Y. M. C. A. OF COVINGTON.
• Court: Kentucky Court of Appeals

61 S.W.2d 1066

250 Ky. 34

AVERBACK v. Y. M. C. A. OF COVINGTON.

Court of Appeals of Kentucky

June 23, 1933

Appeal from Circuit Court, Kenton County, Common Law, and Equity Division.

Action by Ida Averback against the Young Men's Christian Association of Covington. From an adverse judgment, plaintiff appeals.

Affirmed.

Hubbard Schwartz, of Newport, for appellant.

John E Shepard, of Covington, for appellee.

RICHARDSON Justice.

The question presented by this appeal is the liability of an organization conducted for purely public charity to a member of a class assembled at a swimming pool for the failure of the organization to protect such member from a personal injury suffered by coming in contact with a metal covering of a drain pipe used in connection with its premises.

On the 19th day of June, 1929, in the afternoon, between 2:30 and 3 o'clock, Ida Averback, a member of a swimming class, was using the swimming pool owned and conducted on its premises at Covington, Ky. by the Y. M. C. A. of Covington. She asserts that while rightfully using its pool, the small metal covering of the drain pipe was negligently left in a condition as to cause her to slip and fall while using the spring board to dive in the pool, and thereby her ankle struck the drain pipe covering and was broken in three separate places, causing her great pain and suffering permanently injuring her ankle. A demurrer to the petition was overruled. The answer traversed the allegations of the petition, followed by averments setting forth the organization of the Y. M. C. A. and that it was a charitable institution organized and engaged in the improvement of the spiritual, mental, and physical conditions of young people and that its swimming pool offered to them, services rendered by the association to the community at large, and to its members, including the plaintiff, and that it was maintained solely by the contributions of charitably inclined persons and that the income from its property was used solely for the purpose of enabling it to carry on its charitable work, and for no other purpose. These facts were presented as a bar to her recovery. Averback demurred to this paragraph of the answer. The court overruled the demurrer. She declined to plead further, and her petition was dismissed.

She is here insisting that the answer by the use of no language sets forth that the Y. M. C. A. "is purely charitable in its purposes," that the paragraph of the answer presenting the plea exonerating the association from liability to her fails to allege that the association was granted permission by its charter to establish and maintain a swimming pool, and charge admission therefor. To support her contention she cites Farmers' & Traders' Bank v. Thixton Millett & Co., 199 Ky. 69, 250 S.W. 504; Hind v. Cook & Co., 202 Ky. 526, 260 S.W. 349. Also for this purpose she quotes from Chapin v. Holyoke Y. M. C. A., 165 Mass. 280, 42 N.E. 1130, this language: "Since the purposes of the Young Men's Christian Association are social as well as charitable, and include the giving of lectures and other entertainments for the benefit of its members, the provision of a gymnasium for promoting their health, and the...