Mayor and City Council of Baltimore City v. State, for Use of Blueford

• Court: Maryland Supreme Court
• Writing for the Court: OFFUTT, Judge.
• Citation: Mayor and City Council of Baltimore City v. State, for Use of Blueford, 173 Md. 267, 195 A. 571 (Md. 1937)
• Decision Date: 10 December 1937
• Docket Number: 54.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE CITY v. STATE, for Use of BLUEFORD et al.

195 A. 571

173 Md. 267

MAYOR AND CITY COUNCIL OF BALTIMORE CITY v. STATE, for Use of BLUEFORD et al.

No. 54.

Court of Appeals of Maryland

December 10, 1937

Appeal from Baltimore City Court; J. Frank Supplee, Judge.

Action by the State of Maryland, for the use of Alice Blueford and William Blueford, surviving parents of Marie Blueford, an infant, deceased, against the Mayor and City Council of Baltimore City, a municipal corporation. From a judgment for the plaintiffs, the defendants appeal.

Reversed without a new trial.

J Francis Ireton, Asst. City Sol., of Baltimore (R. E. Lee Marshall, City Sol., and Hector J. Ciotti, Asst. City Sol both of Baltimore, on the brief), for appellants.

Helen Elizabeth Brown, of Baltimore (R. Palmer Ingram, of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

OFFUTT Judge.

Marie Blueford, aged eleven, daughter of William and Alice Blueford, left her home at 39 East York street at about 1:30 o'clock p. m. on June 26, 1933, to go to a swimming pool in Riverside Park, in Baltimore. Nothing more was heard of her until her body was found a few hours later at the bottom of the pool. The park is one of the public parks of Baltimore city, and the pool a public swimming pool maintained and managed by the city. At the time of the accident a fee of 5 cents was charged for the use of the pool, a bathing suit, a locker and towels. The pool is elliptical in shape, and slopes uniformly from zero at its edge to about 8 1/2 feet in the center. It is 280 feet long and 180 feet wide, and is enclosed by a 9-foot wire fence. It is divided into an inner and outer zone, separated by a wire fence extending four and a half feet from the bottom of the pool. The inner zone is about 120 or 125 feet long and 90 feet wide, and is for the use only of swimmers, the outer or shallow zone is for the use of small children and persons who cannot swim. Entrance to the inner pool is through a gate at either end. Two guards are required to be on duty when the pool is in use to protect the bathers. One is stationed on a raft, the other rows a boat about the pool. Their duty is to maintain order, to protect the bathers from danger, and to see that none but persons able to swim are permitted within the inner or deep water zone. On the fence separating the zones, signs warning the bathers of the dangers of the inner zone and bearing the legend, 'Deep water, for swimmers only,' appeared at the time of the accident. The body was found in the inner zone near the fence, about midway between the two gates, where the water would have been over 4 feet deep. About 800 persons used the pool on the day of the accident, and at the time the body was found from 25 to 40 persons were using it, of whom about 15 were in the inner zone.

The guards were on duty on the day of the accident, but neither of them saw Marie Blueford, nor did any other witness in the case see her there or know when or under what circumstances she disappeared.

Several months after the death of Marie Blueford, her parents brought this action in the Baltimore city court against the Mayor and City Council of Baltimore to recover damages for the loss which they sustained as a result of her death, on the theory that the city's employees were negligent in permitting Marie to enter the inner zone, and also in allowing her to drown when they knew, or should have known, that she was in danger. A demurrer to an amended declaration which presented that theory was overruled and the case was tried before the court and a jury. The trial resulted in a verdict for the plaintiffs, and upon that verdict the judgment from which this appeal was taken was entered.

There are five exceptions in the record, of which four relate to rulings on evidence, the other, the fifth to the rulings on the prayers. Of the exceptions to the evidence the only one argued in this court was the second, noted to the action of the court in admitting in evidence a transcript of a death certificate issued by the health department of Baltimore city, in which appeared the statement that an autopsy had disclosed that the cause of death was drowning. The transcript was not authenticated, it was hearsay and irrelevant, and should have been excluded. Standard Gas Equipment Co. v. Baldwin, 152 Md. 321, 325, 136 A. 644. Code, art. 43, § 27, and Code (Supp.1935) art. 35, § 54A, cited in support of the ruling, are not in point. Article 43, § 27, relates to certificates issued by the state registrar, State, Use of Schiller v. Hecht Co., 165 Md. 415, 424, 169 A. 311, as to the fact not the cause of death, and article 35, § 54A, relates to copies of business records. Assuming that under Code Pub.Loc.Laws, art. 4, § 31, a certificate, properly authenticated, of the fact of death would have been admissible, the finding of the coroner as to the cause of death was not, Standar Gas Equipment Co. v. Baldwin, supra, but, in view of the conclusions announced infra, the error is not reversible.

The plaintiffs offered two prayers which were granted, the defendant sixteen, of which eight were granted and eight refused. Although it excepted to the adverse rulings in respect to the plaintiffs' prayers, and to the refusal of its second and third prayers, no objection to those rulings was argued in this court and they may be disregarded except in so far as the granting of the plaintiffs' prayers was inconsistent with the theory presented by the defendant's demurrer prayers. The important questions in the case are raised by the refusal of the defendant's A prayer, a general demurrer to the evidence, its B prayer that there was no legally sufficient evidence of primary negligence, its D prayer that the decedent was guilty of contributory negligence as a matter of law, and its F prayer, that in maintaining the pool the city was exercising a governmental function and was not subject to liability for any negligence or fault in the performance thereof.

In orderly sequence the question first to be decided is whether the municipality is subject to liability for negligence or other default in the maintenance and management of the swimming pool.

It is an elementary and firmly established principle of municipal law that the state cannot be sued in its own courts without its consent. 59 C.J. 300; State v. Wingert, 132 Md. 605, 104 A. 117; State of Maryland v. Baltimore, etc., R. Co., 34 Md. 344, affirmed 21 Wall. 456, 22 L.Ed. 678. The reason for the immunity is that to subject the state to the coercive control of its own agencies would not only be inconsistent with its sovereignty, but would so hamper and impede the orderly exercise of its executive and aministrative powers as to prevent the proper and adequate performance of its governmental functions. So it was said in State v. Baltimore, etc., R. Co., supra: 'This immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy. Parties having claims or demands against her, must present them through another department of the Government--the Legislature--and cannot assert them by suit in the Courts.' That immunity extends to such agencies of the state as have no separate corporate existence but are employed by it merely as hands or instruments to execute its will, McQuillen on Mun.Corp. § 2793, but not to its creatures, such as municipal corporations, except when exercising some governmental function of the state itself, Id., Wynkoop v. Hagerstown, 159 Md. 194, 150 A. 447. Where, however, a municipality is engaged in the performance of a governmental function as an agent of the state, the same principle which protects the state from liability also protects the municipality. Id. So that, where that principle of immunity is invoked in behalf of a municipality charged with a tort, the primary and essential inquiry is whether the tortious act was done in the course of the performance of some governmental duty or function.

The definite and precise question submitted in this case is therefore whether the management and maintenance of a public swimming pool, in a public park by the municipality, is a governmental function.

Whether the maintenance of a public park by a municipality is a governmental function is a question upon which the conclusions of the several jurisdictions of the nation are not in harmony. McQuillen on Mun. Corp. § 2850, notes 71 and 72; 99 A.L.R. 689; 42 A.L.R. 264; 29 A.L.R. 868; 43 C.J 1170, 1172. But the rule supported by what is said in Alder v. Salt Lake City (1924) 64 Utah 568, 231 P. 1102, to be the great weight of authority is that adopted in Mayor and City Council of Baltimore v. State, Use of Ahrens, 168 Md. 619, 179 A. 169, 99 A.L.R. 680, that the maintenance of a public park is a governmental function, and that the municipality is not liable for any default or neglect of its agents or employees in the management thereof. It is undoubtedly true that it is difficult to discover any logical distinction between the governmental character of such a duty as that of maintaining the public highways, which in this state has been held to be a private corporate function, Mayor and City Council of Baltimore v. Eagers, 167 Md. 128, 173 A. 56, and that of maintaining the public parks, which was held in Mayor and City Council of Baltimore v. State to the Use of Ahrens, supra, to be a public, political, and governmental function, except as pointed out in Baltimore County Com'rs v. Wilson, 97 Md. 207, 210, 54 A. 71, 56 A. 596, that, while there was no liability at common law upon the municipality for failing to properly maintain the public highways, it nevertheless arose by necessary implication from the powers and duties created by the statutes,...