Lemieux v. City of St. Albans

• Decision Date: 06 October 1942
• Docket Number: No. 920.,920.
• Citation: 28 A.2d 373
• Parties: LEMIEUX v. CITY OF ST. ALBANS.
• Court: Vermont Supreme Court

28 A.2d 373

LEMIEUX

v. CITY OF ST. ALBANS.

No. 920.

Supreme Court of Vermont. Orleans.

Oct. 6, 1942.

Exceptions from Orleans County Court; Orrin B. Hughes, Judge.

Action by Roch Lemieux against the City of St. Albans to recover for personal injuries. Judgment for plaintiff and defendant brings exceptions based on the refusal of the lower court to grant defendant's motion for a directed verdict.

Reversed and judgment for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Maxwell L Baton and James E. Knapp, both of Newport, for plaintiff.

P. C. Warner, of St. Albans, for defendant.

JEFFORDS, Justice.

The plaintiff, a member of the Civilian Conservation Corps, was engaged on June 9, 1939, on work in a pit from which many trucks were drawing dirt. Most of the trucks were delivering to a C. C. C. project at St. Albans Bay. In addition to the so-called C. C. C. trucks there were two others one of which while backing ran over and injured the plaintiff. The plaintiff claimed that the driver of this truck was a servant of the defendant at the time and that the accident resulted from his negligence. There was a trial by jury resulting in a verdict and judgment for the plaintiff and the case is here on defendant's exceptions one of which is based on the refusal of the Court to grant its motion for a directed verdict. One ground for this motion was, in effect, that the defendant was using the truck and driver in question in the performance of a governmental function and consequently cannot be held liable on the ground of respondeat superior. We will first consider this question; for if decided in favor of the defendant all of its other exceptions become immaterial.

From the evidence taken in the light most favorable to the plaintiff it clearly appears that the defendant was constructing a public playground for children on the property in which the pit was located. The truck at the time of the accident was engaged in drawing dirt from the pit so as to clean or level it and thus make it a suitable portion of the playground. The fill was being taken gratuitously by this truck to a place where the State was building a garage for national guard trucks.

We are thus called upon to determine whether the construction of the public playground is the performance of a governmental or corporate function by a municipal corporation of this State. This is a question of first impression with us. The cases from other jurisdictions are conflicting. It appears that the majority hold that such work is governmental in its nature while the minority take the opposite view. It is stated in McQuillin, Municipal Corporations, second ed., revised, § 2793 that: "While there are cases to the contrary, it is generally held that the construction, improvement, or maintenance of a public park camp or playground is the exercise of a governmental function and no liability attaches for the negligence of its officers or employees engaged in such work." This author in section 2850 of his work sets forth the divergence of opinion relating to the question of liability of cities arising from the maintenance of public parks. See also Dillon on Municipal Corporations, 5th Ed., § 1659 and annotations in 29 A.L.R. 863 and 42 A.L.R. 263.

It would serve no good purpose to incorporate in this opinion an extensive review of the cases cited by these authors and an-notators. Most of them have to do with parks but it is apparent that the same rule is and should be applied to public playgrounds. We do refer specially to Bolster v. Lawrence, 225 Mass. 387, 114 N.E. 722, 724, L.R.A.1917B, 1285. Our reference is prompted because it is recognized as a leading case on this subject and because the opinion written by the late Chief Justice Rugg so well and clearly sets forth the reasons why in our judgment a project such as the one here in question should be classed as a governmental function. It is therein stated that "the underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability, if it is not, there may be liability." That case had to do with an injury to a child in a hath house constructed under statutory authority. It was held that the maintenance of free public baths is in its essence a public benefit because they tend to promote the health of the public. It is stated that such maintenance "belongs to the same class of public service as municipal playgrounds and swimming pools for small children. * * * It is in its intrinsic characteristics a project for the general good of all the public." See, also, Kellar v. Los Angeles, 179 Cal. 605, 178 P. 505; Board of Park Com'rs v. Prinz, 127 Ky. 460, 105 S.W. 948; City of Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, L.R.A.1915D, 1108; Alder v. Salt Lake City, 64 Utah 568, 231 P. 1102; Nelson v. Spokane, 104 Wash. 219, 176 P. 149; Conners v. New Haven, 101 Conn. 191, 125 A. 375; City of Warrenton v. Smith, 149 Ga. 567, 101 S.E. 681; Norman v. Chariton, 201 Iowa 279, 207 N.W. 134; Blair v. Granger, 24 R.I. 17, 51 A. 1042.

But our conclusions are not based entirely on the Bolster and other cases referred to but in part on our own law on this subject. The establishment and maintenance of public playgrounds by municipalities is authorized by P.L. 3701. An examination of our cases having to do with powers conferred upon municipalities either by their charter provisions or by general statutes shows that they have tended toward holding such to be governmental rather than corporate functions. Welsh v. Rutland...