Howard v. City of New Orleans

• Decision Date: 13 July 1925
• Docket Number: 27202
• Citation: 105 So. 443,159 La. 443
• Court: Louisiana Supreme Court
• Parties: HOWARD v. CITY OF NEW ORLEANS. In re HOWARD

105 So. 443

159 La. 443

HOWARD
v.
CITY OF NEW ORLEANS.

In re HOWARD

No. 27202

Supreme Court of Louisiana

July 13, 1925

Judgment affirmed.

Oliver H. Dabezies and Henry W. Robinson, both of New Orleans, for appellant.

T. Semmes Walmsley, City Atty., and Henry B. Curtis, Asst. City Atty., both of New Orleans, for appellee.

OPINION

[159 La. 444] OVERTON, J.

This is a suit, instituted by Michael Howard, a minor, through his father, William J. Howard, to recover damages from the city of New Orleans, amounting to $ 50,000. An exception of no cause of action was filed by defendant. This exception was sustained in the trial court, and, on appeal to the Court of Appeal for the parish of Orleans, the judgment sustaining the exception was affirmed. The case comes before us on a writ of review directed to the Court of Appeal.

It appears from the petition, filed by plaintiff, that he was a plumber's helper, working for the J. A. Reynolds Company, Inc.; that this company was working under a contract with defendant to do repair work on the Criminal Court building in the city of New Orleans, a building which, it is alleged, was owned, occupied, and maintained by defendant; that, while plaintiff was engaged in assisting his employer on the third floor of said building, he dropped a tool down the elevator shaft; that he descended to the first floor of said building and requested the elevator tender, an employee of defendant, acting within the scope of his employment, to admit him through the door, at the rear of the elevator shaft, so that he could get the tool dropped by him, which had fallen into the elevator pit; that the tender opened the door as requested; that plaintiff entered the pit; and that, while he was in the pit looking for the tool, the tender, without warning to him, lowered the car to the bottom of the pit, crushing him, and rendering him helpless for life.

The suit is based on article 2315 of the Civil Code, which omitting matter that has [159 La. 445] no possible pertinency here, reads as follows:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it. * * * "

The exception of no cause of action is based upon the ground that a municipality, in exercising a governmental function is not liable for the negligence of its agents and employees, through whom it is discharging that function; that defendant, in operating said elevator, was engaged in exercising a governmental function; and that, in such a case, article 2315 of the Civil Code has no application.

Plaintiff, on the other hand, contends that article 2315 of the Civil Code does make a municipality liable for acts of negligence committed in the exercise of governmental functions. He points out, among other things, that article 2315 of the Code, in so far as quoted above, is a transcript of article 1384 of the Code Napoleon, and cites Laurent, vol. 20, pp. 440 and 467; Huc's Commentaries on the Theory and Practice of the Civil Law, vol. 8, p. 598, No. 447; and Baudry Lacantinnerie, vol. 15, p. 628, for the purpose of showing that, under article 1384 of the Code Napoleon, municipalities in France are liable for acts of negligence, committed by them, through their agents and appointees, in the discharge of governmental functions, and, by a parity of reasoning, contends that municipalities [105 So. 444] in this state are liable for such acts, under the corresponding article...