Gebhardt v. Vill. of La Grange Park

• Decision Date: 22 December 1933
• Docket Number: No. 21892.,21892.
• Citation: 354 Ill. 234,188 N.E. 372
• Parties: GEBHARDT v. VILLAGE OF LA GRANGE PARK.
• Court: Illinois Supreme Court

354 Ill. 234

188 N.E. 372

GEBHARDT

v.VILLAGE OF LA GRANGE PARK.

No. 21892.

Supreme Court of Illinois.

Oct. 21, 1933.

Rehearing Denied Dec. 22, 1933.

Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; D. J. Normoyle, Judge.

Action by Hildegarde Gebhardt, by her next friend, against the Village of La Grange Park and others. To review a judgment in Appellate Court affirming a judgment for plaintiff against named defendant and another (268 Ill. App. 556), named defendant brings certiorari.

Reversed and remanded, with directions.

HERRICK and FARTHING, JJ., dissenting.Stevens, Carrier & Griffith, of Chicago, for plaintiff in error.

Frederick A. Gariepy and Owen Rall, both of Chicago, for defendant in error.

STONE, Justice.

This cause is here by writ of certiorari to review the judgment of the Appellate Court for the First district affirming on appeal the judgment of the circuit court of Cook county in an action brought by defendant in error by her next friend, for injuries received while riding in an automobile with one Charles Smith, a servant of the plaintiff in error village. The suit was originally filed against plaintiff in error, Marshall Field & Co. and Smith. On trial Smith was defaulted. Marshall Field & Co. was dismissed out of the case by directed verdict, and a judgment for $3,500 was entered against plaintiff in error and Smith. Smith did not appeal. The plaintiff in error village appealed to the Appellate Court for the First district, and the judgment of the circuit court was there affirmed.

The facts are that the plaintiff in error village, under authority of an act of the Legislature, passed an ordinance establishing a playground and recreation board for the village and appointed three members, to serve without compensation. The ordinance gave to the board powers enumerated by the statute, which were to maintain and equip playgrounds and recreation centers within or beyond the corporate limits of the village, to employ play leaders, directors, supervisors, recreation superintendents, and other officers and employees as the board might deem proper. By amendment the statute conferred on such board the power to provide swimming pools. (Smith-Hurd Rev. St. 1931, c. 24, §§ 630-633, Cahill's Rev. St. 1931, c. 24, pars. 631-634.) For about six weeks prior to July 14, 1927, the date on which defendant in error was injured, the defendant Charles Smith, by direction of the chairman of the recreation board, had been using the village truck, of which he was the driver, to convey children to and from the Belmont swimming pool, located about eight miles from the plaintiff in error village. On July 14, 1927, owing to the inclemency of the weather, the chief of police directed Smith to use his (Smith's) automobile instead of the village truck to convey the children to and from the swimming pool. On returning that afternoon, while proceeding east on Ogden avenue, a public highway, Smith's car collided with a truck of Marshall Field & Co., and defendant in error was injured.

It is contended by plaintiff in error, first, that the village, through its recreation board, was not operating the Belmont swimming pool; and, second, assuming that it was so operating this swimming pool and that Smith was its agent, the village was in the exercise of a governmental function and was not liable for damages. The latter is the principal question in the case, and in consideration thereof we will assume that the village was maintaining the Belmont swimming pool, that Charles Smith was the agent of the village, and that it was through his negligence that the injury occurred. This brings us to the question, then, whether the maintenance of a swimming pool is a governmental or proprietary function. If it be the former, the doctrine of respondeat superior has no application and the village may not be held liable for damages arising out of the negligence of its servants in the discharge of that function. This rule is generally accepted. Roumbos v. City of Chicago, 332 Ill. 70, 163 N. E. 361, 60 A. L. R. 87, and cases there cited. Indeed, counsel for defendant in error do not contend otherwise. If the function is a corporate or proprietary one, as it is sometimes called, the doctrine of respondeat superior does apply, and the municipality is liable for damages arising out of the negligence of its servants in the discharge of that function.

The question whether the maintenance of a swimming pool by a city or village is a governmental or proprietary function is one which has not heretofore engaged the attention of this court. There is substantial contrariety of opinion in courts of last resort in this country on the question whether the maintenance of parks and playgrounds, swimming pools, and the like, is a governmental function. Among those holding that it is not, are Colorado, Missouri, New York, Pennsylvania,and West Virginia. City of Denver v. Spencer, 34 Colo. 270, 82 P. 590,2 L. R. A. (N. S.) 147, 114 Am. St. Rep. 158,7 Ann. Cas. 1042;Capp v. City of St. Louis, 251 Mo. 345, 158 S. W. 616,46 L. R. A. (N. S.) 731, Ann. Cas. 1915C, 245;Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 264, 48 Am. Rep. 622;Barthold v. City of Philadelphia, 154 Pa. 109, 26 A. 304;Warden v. City of Grafton, 99 W. Va. 249, 128 S. E. 375, 42 A. L. R. 259. Among those states holding that the maintenance of parks and playgrounds is a governmental function are California, Kansas, Georgia, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, Rhode Island, Connecticut, Tennessee, Washington, Wisconsin, and Iowa. Kellar v. City of Los Angeles, 179 Cal. 605, 178 P. 505;Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018,51 L. R. A. (N. S.) 1032;City of Warrenton v. Smith, 149 Ga. 567, 101 S. E. 681;Board of Park Com'rs v. Prinz, 127 Ky. 460, 105 S. W. 948;Bolster v. City of Lawrence, 225 Mass. 387, 114 N. E. 722, L. R. A. 1917B, 1285;Heino v. City of Grand Rapids, 202 Mich. 363, 168 N. W. 512, L. R. A. 1918F, 528;Emmons v. City of Virginia, 152 Minn. 295, 188 N. W. 561, 29 A. L. R. 860;Caughlan v. City of Omaha, 103 Neb. 726, 174 N. W. 220;Bisbing v. Asbury Park, 80 N. J. Law, 416, 78 A. 196,33 L. R. A. (N. S.) 523;Blair v. Granger, 24 R. I. 17, 51 A. 1042;Hannon v. City of Waterbury, 106 Conn. 13, 136 A. 876, 57 A. L. R. 402;Mayor & City Council of Nashville v. Burns, 131 Tenn. 281, 174 S. W. 1111;Nelson v. City of Spokane, 104 Wash. 219, 176 P. 149;Bernstein v. City of Milwaukee, 158 Wis. 576, 149 N. W. 382, L. R. A. 1915C, 435;Mocha v. City of Cedar Rapids, 204 Iowa, 51, 214 N. W. 587.

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