Manguno v. City of New Orleans
| Decision Date | 21 May 1934 |
| Docket Number | 14829 |
| Citation | 155 So. 41 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MANGUNO v. CITY OF NEW ORLEANS |
Rehearing denied June 11, 1934. Writ of certiorari denied Aug. 3, 1934.
Richard A. Dowling, of New Orleans, for appellant.
E. M Robbert, Acting City Atty., and Henry B. Curtis and Charles A. O'Niell, Jr., Asst. City Attys., all of New Orleans for appellee.
Plaintiff sued the city of New Orleans to recover damages for personal injuries, medical expenses incurred, and loss of earnings alleged to have resulted when one of the defendant's steel garbage trailers broke loose from the truck that was hauling it and ran into the Buick automobile that the plaintiff was driving in the opposite direction on the Chef Menteur Highway on September 30, 1930, at about 11:50 o'clock a. m. The employees of the city are alleged to have been at fault in not properly fastening the heavy iron trailer to the truck.
The defendant filed exceptions of no right or cause of action which was referred to the merits. It then answered reserving the benefit of the exceptions, admitting that the accident occurred, denying that its employees were guilty of negligence, and reiterated the defense under the exceptions to the effect that the collection and disposal of the garbage by the city was a governmental function and, therefore, it was not liable for the negligent acts of its employees and agents in discharging their duties in respect thereto.
There was judgment in favor of the defendant dismissing the suit, and plaintiff has appealed.
The allegations of the petition, as well as the evidence introduced on the trial of the case, show that the city of New Orleans is a municipal corporation; that availing itself of the provisions of Act No. 248 of 1912, as amended by Act No. 34 of 1914, it built and maintained garbage incinerator plants and automobile trucks and steel or iron trailers for the purpose of collecting and conveying to the incinerator the garbage collected; that the trailers were fastened together by a coupling consisting of a drawhead with a pin; that on the date in question the truck had conveyed the loaded trailers to the incinerator, where they were emptied, and was returning on the Gentilly Highway; that plaintiff was driving the Buick sedan car in the opposite direction on the same highway; that as the two vehicles approached each other one of the trailers became unfastened, careened to its left, and crashed into the left front side of the Buick car, severely and painfully injuring the plaintiff about the face.
We experience little difficulty in reaching the conclusion that the defendant's employees were guilty of negligence because its evidence shows that the trailer became unfastened due to the vibration which caused the coupling to turn in such a position as to dislodge the pin. If the coupling had been properly and carefully made, there is no doubt that the accident would not have occurred.
The question of law presented, i. e., whether or not the operation of the garbage incinerator plants and their auxiliaries by the city is a governmental or municipal function, is not so easy of solution. The acts of the Legislature under which the incinerators are operated do not impose upon the city as an agency of the state the duty of operating them. The city authorities have the right to contract with third persons for the operation of municipal garbage incinerators or operate them themselves.
The law is well settled that, where the state as a sovereign delegates governmental functions to a municipality, it cannot be held liable for the tortious acts of its officials, representatives, and employees in discharging and performing those duties. However, municipalities are liable in damages for the negligence and carelessness of their officials, representatives, and employees in performing municipal or corporate functions. 19 R. C.L., verbo "Municipal Corporations," par. 392, p. 1111; 43 Corpus Juris, verbo "Municipal Corporations," par. 1702, p. 925. This doctrine has been recognized by the courts of this state. In the case of City of New Orleans v. Kerr, 50 La.Ann. 413, 23 So. 384, 386, 69 Am. St. Rep. 442, the court said: "The powers and obligations of municipal corporations like the city of New Orleans are twofold in character: Those that are of a public nature, and those that are of a private nature. This court, by repeated decisions, has recognized this distinction. Egerton v. City of New Orleans, 1 La.Ann. 435, 437; Stewart v. City of New Orleans, 9 La.Ann. 461 61 Am. Dec. 218; Lewis v. City of New Orleans, 12 La.Ann. 190; Howe v. City of New Orleans, 12 La.Ann. 481, 482; Bennett v. City of New Orleans, 14 La.Ann. 120; New Orleans, M. & C.R. Co. v. City of New Orleans, 26 La.Ann. 478. "As to the first or public character of its powers and obligations, the municipal corporation represents the state discharging duties incumbent on the state. As to the second or private character of its powers and obligations, the municipal corporation represents the pecuniary and proprietary interests of individuals. "As to the first, where a municipal corporation acts as the agent of the state it becomes the representative of sovereignty, and is not answerable for the nonfeasance or malfeasance of its public agents. In Stewart v. City of New Orleans, 9 La.Ann. 461, 61 Am. Dec. 218, it was held that the city was not liable in damages arising out of the killing of a slave by a police officer because the preservation of public order and tranquillity was a governmental function and, therefore, the city was not liable for the wrongful act of its officer. Joliff v. City of Shreveport, et al., 144 La. 62, 80 So. 200; Jones v. City of New Orleans, Louisiana, 143 La. 1073, 79 So. 865. In the case of Lewis v. City of New Orleans, 12 La.Ann. 190, the court held that the city was not liable in damages for the death of a prisoner due to the failure of the jailer to take proper care of him on the theory that the municipal corporation was discharging a governmental function for the public welfare in maintaining the jail which was not operated for private advantage or profit. In Howard v. City of New Orleans, 159 La. 443, 105 So. 443, 445, the plaintiff sued the city for damages for personal injuries alleged to have resulted through the negligence of one of its employees in the criminal court building in lowering an elevator and crushing the plaintiff. The defense was that the city was exempt from liability since the employee was discharging a governmental function. In disposing of the case adversely to the plaintiff, the court said:
In the above case the Supreme Court cited with approval the case of Schwalk's Adm'r v. City of Louisville, 135 Ky. 570, 122 S.W. 860, 861, 25 L.R.A. (N. S.) 88. In that case the deceased was killed through the negligence of the employee of the city while riding in an elevator in the city hall. The court there held that maintaining the city hall including the operation of the elevator was a governmental function and hence the defendant was not liable, saying: "The general rule on this subject is well stated in Burdick's Law of Torts as follows: In Godfrey v. City of Shreveport, 6 La.App. 356, the court held that the establishment of a public park for the health and recreation of the general public was a governmental function, saying: ...
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