Jones v. City of New Orleans
| Decision Date | 04 November 1918 |
| Docket Number | 22891 |
| Citation | 143 La. 1073,79 So. 865 |
| Court | Louisiana Supreme Court |
| Parties | JONES v. CITY OF NEW ORLEANS |
Henry Mooney, Wm. H. Byrnes, Jr., and Wm. O'Hara, all of New Orleans, for appellant.
John J Reilley, Asst. City Atty., and I. D. Moore, City Atty., both of New Orleans, for appellee.
PROVOSTY J., absent on account of illness, takes no part.
Joseph McCarthy was shot to death by Alexander Humphreys on one of the docks of the city of New Orleans, April 27, 1915. At that time Humphreys was a policeman assigned to duty under the Public Belt Railroad Commission of the City of New Orleans and was acting as special officer, Public Belt Railroad. The present action is by Mrs. Stella Jones, widow of McCarthy suing in her individual capacity and as natural tutrix of her minor children, issue of her marriage with McCarthy, against the city of New Orleans for $ 30,000 damages for the negligent, wanton, and careless killing of her said husband. The district judge refused plaintiff's demand, and she has appealed.
The record shows that the Public Belt Railroad Commission, as presently constituted, was created by ordinance of the council of the city of New Orleans, adopted October 4, 1904 for the purpose of acquiring, maintaining, and operating a double-track public belt railway in the city of New Orleans for the benefit of the people of said city, in order to connect the freight and passenger terminals of the several railroad systems then or thereafter entering the city of New Orleans and to facilitate shipments to and from industrial plants already situated or thereafter to be established in said city, and, with that end in view, to transport passengers and freight. In order to provide the means of carrying out the objects of the ordinance, the city council appropriated $ 40,000 already collected under a previous ordinance and a further sum of $ 10,000 per annum for the years 1906 to 1915, inclusive. After surmounting many difficulties principally of a financial nature, the appropriations made in the ordinance being wholly inadequate to carry out its purposes, the Belt Railroad was finally acquired and established, and was in complete operation at the time of the unfortunate occurrence which gave rise to the present litigation.
When Humphreys killed McCarthy, he was a policeman, appointed in the same manner as all other members of the police force, and vested with the same authority, but assigned to the special duty of protecting the property which came under the control and in the custody of the Belt Railroad. It is not denied that he was acting within the scope of his employment when he did the shooting.
Plaintiff bases her right to recover on three propositions: (1) That the shooting was done negligently, wantonly, and carelessly (2) that the Belt Railroad is a corporate or private enterprise, and its operation not a government function; and (3) that Humphreys, being an employe of the Belt Railroad, was performing a private duty not...
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