Davis v. New Orleans Public Belt R. R.

• Decision Date: 13 July 1925
• Docket Number: 27341
• Citation: 105 So. 421,159 La. 431
• Court: Louisiana Supreme Court
• Parties: DAVIS v. NEW ORLEANS PUBLIC BELT R. R. [*] In re NEW ORLEANS PUBLIC BELT R. R

105 So. 421

159 La. 431

DAVIS v. NEW ORLEANS PUBLIC BELT R. R. ^[*]

In re NEW ORLEANS PUBLIC BELT R. R

No. 27341

Supreme Court of Louisiana

July 13, 1925

Writ refused.

Wm McL. Fayssoux and McCloskey & Benedict, all of New Orleans for applicant.

Edward Rightor, of New Orleans, for respondent.

THOMPSON J. O'NIELL, C. J., dissents.

OPINION

THOMPSON, J.

The basis for this application is that relator has not had its day in court, and has been condemned by the judgment of the civil district court, which was affirmed by the Court of Appeal, without giving defendant the benefit of due process of law.

James Davis sued the city of New Orleans for damages for the negligent killing of his son by employees of the city operating the Public Belt Railroad.

An exception of no cause of action was filed, based on the ground that the Public Belt Railroad was a governmental functionary, and not responsible in damages for torts of its servants. The exception was referred to the merits over the objection of defendant.

The defendant then, under reservation of its exception, filed an answer of general denial and a plea of contributory negligence on the part of the plaintiff's son.

A trial was had on the merits and evidence adduced, but the court sustained the exception of no causeof action, and dismissed the suit under the holding of this court in the Jones Case, 143 La. 1076, 79 So. 865.

On appeal to the Court of Appeal, the judgment sustaining the exception was affirmed.

An application was then made to this court for a review of the judgment of the Court of Appeal. This court reversed the judgment of the Court of Appeal and of the district court, overruled the exception of no cause of action and remanded the case, not for a trial -- for that had already taken place -- but to be decided upon the merits.

In the course of the opinion we said:

"The duty of operating a public belt railroad through a commission was voluntarily assumed by the city of New Orleans in its original ordinance heretofore mentioned, which was subsequently approved and ratified by the Legislature and constitutional amendment.

"This was done solely for the private benefit of the city and its inhabitants. It is true that the said act and amendment have subsequently hedged it about with certain restrictions and limitations, but this was for the protection of the bondholders and to insure a continuance of its operations for the benefit of the people of the community. However, this has not had the effect of making it a state agency solely charged with the discharge of a governmental function; nor has there been any provision exempting it from the character of liability here claimed.

"Its nature and purpose still remain the same, i. e., that it is a department of the city of New Orleans, discharging a municipal or corporate function for private gain and for the private benefit and advantage of its inhabitants." Davis v. N. O. Public Belt R. Co., 155 La. 504, 99 So. 419, 31 A. L. R. 1303.

When the case went back, the defendant (relator here) tendered an amended or supplemental answer in which it set up that the Public Belt Railroad Company had enjoyed autonomy for more than 15 years, purely as a governmental functionary, for the benefit and advantage of the commerce of the port of New Orleans, which port is the coincident port of the entire state; that the Belt Railroad has been maintained and operated continuously during said period as merely self-sustaining; that the entire net revenue, if there should be such, would belong to the state of Louisiana for the purposes aforesaid. In concluding, the amended answer alleged that the Belt Railroad is a public agent of the state;...