Gianfortone v. City of New Orleans, 12,074.

• Decision Date: 07 April 1894
• Docket Number: 12,074.
• Citation: 61 F. 64
• Parties: GIANFORTONE v. CITY OF NEW ORLEANS.
• Court: U.S. District Court — Eastern District of Louisiana

61 F. 64

GIANFORTONE v. CITY OF NEW ORLEANS.

No. 12,074.

United States Circuit Court, E.D. Louisiana.

April 7, 1894

Henry Chiapella and Sambola & Dueros, for plaintiff.

E. A O'Sullivan, City Atty., for defendant.

PARLANGE District Judge.

This is a suit in damages against the city of New Orleans, brought by Giuseppa Gianfortone, widow of Pietro Monasterio, on her own behalf and as natural tutrix of her minor children, issue of her marriage with said Monasterio. The petition alleges that Monasterio, together with other persons, was arrested on the charge of having murdered the chief of police of New Orleans that he was prosecuted, together with said other persons, for said crime, before the criminal district court for the parish of Orleans,-- the trial resulting in a mistrial as to Monasterio and two of his coaccused, and in a verdict of acquittal as to six of his coaccused; that immediately after said verdict, a conspiracy was formed by a certain body of men, unknown to the petitioner, with the avowed purpose of setting at naught the findings of the jury in the criminal district court, and with the sole purpose of taking the law into their own hands, and of summarily, and without trial destroying, by wholesale slaughter, the lives of Monasterio and his coaccused, all of whom were then incarcerated in the parish prison; that, in pursuance of said conspiracy, a mass meeting was called for the next day at Clay statute, on the main street of the city, which assembly was advertised in the morning newspapers of the city; that in answer to said call a crowd congregated at said place, where inflammatory speeches were made, and that, after the passions of the mob had been aroused, it moved in a body to the parish prison; that some 40 or 50 armed men, whose names are unknown to the petitioner, preceded the main body of rioters, and secured admission inside the walls of the prison by breaking open a rear door of the building, meeting with no resistance from the police authorities; that said armed body took possession of the prison, and shot down and killed Monasterio and 10 of his coaccused.

The petition further avers that if the mayor and chief of police of the city, upon reading in the newspapers the advertisement of the proposed mass meeting, had taken the proper steps for the protection by the police of the parish prison, as well as the lives of the prisoners, the riotous assemblage would not have organized, nor have proceeded to the parish prison, nor have taken the same, and the slaughter would have been prevented; that the parish prison is a massive building, easy to defend by a handful of disciplined policemen, for a time at lease, and until the militia of the state, or other police assistance, could have been summoned; that, from the place where the mass meeting was held, to the parish prison, no police officers were stationed, with instructions to arrest the march of the mob; that the police force at the parish prison was insufficient, imperfectly armed, and demoralized, and yielded easily to the mob; that the safety of the prisoners might have been provided for by their prompt removal to another prison; that the mayor was not in his office that morning, and could not be found, and that he gave no instructions to the police to disperse the mob; that the mayor is the chief magistrate and chief executive of the city, is at the head of the police force, and is charged with the duty of seeing the laws executed, and of preserving peace and good order within its limits; that the chief of police, next in command to the mayor, was equally derelict in his duties, and was, together with the mayor, and all of the employes, agents, deputies, and subordinates, guilty of gross carelessness and culpable negligence; and that by reason thereof, and of their failure to perform the duties of their respective offices, the city of New Orleans is liable in damages to the petitioner in the sum of $10,000, on a cause of action which had accrued to said Monasterio, and which has survived his death, and become vested in petitioner, individually and as mother and tutrix.

Act No. 51 of 1855 (now section 2453, Rev. St. La.) provides that 'the different municipal corporations in this state shall be liable for damages done to property by mobs or riotous assemblages in their respective limits. ' Anterior to the enactment of this statute, there was no liability, under the law of Louisiana, on the part of municipal corporations, for the destruction of property by mobs. In 1855 a similar statute was enacted in the state of New York, and as late as the year 1865, a vigorous attack was made upon its constitutionality, but its validity was sustained by the court of appeals of that value and interest, as setting forth the history of the legislation by which municipal corporations are made liable for the destruction of property by mobs. Judge Dillon, in his work on Municipal Corporations (volume 2, Sec. 959), says: 'Public or municipal corporations are under no common-law liability to pay for the property of individuals destroyed by mobs or riotous assemblages, but in such case the legislature may constitutionally give a remedy. ' (Numerous cases cited.)

'At common law * * * a municipal corporation is not liable for the destruction of property by a riotous assemblage of persons, or for the neglect of its officers in not preserving the peace, and preventing such destruction. But this doctrine is not in accordance with sound public policy, and has been changed by statute in many of the states. * * * But the right to demand reimbursement from a municipal corporation for damages caused by a mob is not founded on contract. It is a statutory right, and may be given or taken away at pleasure. ' (Numerous cases cited.) 15 Am. & Eng.Enc.Law, verbis 'Municipal Corporations,' p. 1158.

It is therefore clear that, in the absence of a statute, municipal corporations are not liable for the destruction of property by mobs, and I have stated that as late as 1865 the constitutionality of such a statute was contested. Even now, in a number of states, there are no statutes imposing the liability upon municipal corporations.

Act No. 51 of 1855 cannot be construed so as to include within its purview loss of life caused by a mob. It was not until the enactment of Act No. 71 of 1884 that an action could be maintained in this state for damages caused by the death of a human being. See Vredenburg Case, 33 La.Ann. 627; Van Amburg Case, 37 La.Ann. 651. As, prior to 1855, municipal corporations were not liable for any acts of violence committed by a mob, it is beyond question that, when the legislature enacted Act No. 51 of 1855,-- our jurisprudence then being that no damages could be had for the loss of a human life,-- it was not contemplated that such an action as this one could be maintained under that statute. By no possible intendment could 'property,' in 1855, have been made to include a human life. As, neither by the common law nor by the civil law, could the price of a human life be sued for, and as it has been shown that there is no implied liability on the part of municipal corporations for any acts of violence committed by mobs, it is perfectly clear that if the legislature, in 1855, had intended to innovate in both respect, it would have done so clearly. It is also evident that Act No. 51 of 1855 does not provide for terror, or other injuries to feelings, caused by mobs. That act being the only statute of Louisiana mentioning municipal corporations by name with regard to torts, if the city of New Orleans can be held liable in this action, it must be by force of some other law. I understand that all claim that this action is based on the act of 1855 is abandoned, but it is urged that the city of New Orleans may be held liable under article 2315, Civ. Code La., as amended by Act 71 of 1884, which article now reads:

'Every act, whatever, of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child, or husband, or wife, as the case may be.'

In support of the view that the city is liable in the present action under article 2315, Civ. Code, the plaintiff cites cases which she contends were decided against the city by virtue of that article of the Code. The particular cases cited may have been decided under article 2315 of the Civil Code, or they may have been based upon the implied liability of municipal corporations. However this may be, those cases bear but incidentally on the matters in hand.

The solution of the question presented in this case is free from difficulty, and results from making a clear distinction between those powers and duties of the city of New Orleans which are private, and those which are public or governmental. It must be borne in mind that the city of New Orleans is not sued in this action for any commission or omission by it in its corporate capacity. It is being sued for the neglect of duties of its officers.

'So far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially public,-- purposes pertaining to the administration of general laws made to enforce the general policy of the state,-- they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless by statute the action be given. In...