Rome v. London & Lancashire Indemnity Co. of America

• Decision Date: 22 June 1936
• Docket Number: 16343
• Citation: 169 So. 132
• Parties: ROME v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA
• Court: Court of Appeal of Louisiana — District of US

169 So. 132

ROME v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA

No. 16343

Court of Appeal of Louisiana, Orleans.

June 22, 1936

Rehearing denied Oct. 5, 1936. Writ of certiorari refused Nov. 4, 1936.

C Ellis Henican, of New Orleans, for appellants.

Miller Bloch & Martin, of New Orleans, for appellee.

McCALEB Judge. WESTERFIELD, Judge (concurs). JANVIER, Judge (dissenting).

OPINION

McCALEB, Judge.

This is the second time this court has had occasion to consider this case.

Mr. and Mrs. Nicholas Rome brought the suit in the civil district court for the parish of Orleans against the London & Lancashire Indemnity Company of America, the insurance carrier of the New Orleans City Park Improvemeunt Association, under the provisions of Act No. 55 of 1930, claiming damages because of the wrongful death of their son, Allen Rome, a minor 10 years of age.

It is alleged that on Saturday, June 3, 1933, plaintiffs' minor son went to the swimming pool in the city park of the city of New Orleans, paid the customary entrance fee of 25 cents which entitled him to bathe in said swimming pool; that he was unable to swim; that, about ten minutes to twelve on said day, his body was found lifeless on the bottom of that part of the pool where the water was 9 feet in depth; and that his death resulted from drowning and not from any other cause.

It is charged that the drowning of plaintiffs' son was caused through the negligence of the New Orleans City Park Improvement Association, the owner of the pool, due to their faulty management and operation of the pool, in that:

(1) There were more people using the pool than was customary; that the operators of the pool knew or should have known that there would have been more than the customarily anticipated crowd of bathers; and that, notwithstanding, the operators did not supply an extra crew of life guards to watch over the persons bathing in the pool.

(2) That the life guards who were on duty did not attend to their tasks, as ordinarily prudent life guards would have done, considering the number of persons using the pool on that day.

(3) That the life guards saw or should have seen plaintiffs' son in distress prior to the time he lost his life in the said pool and that they did nothing to save him.

(4) That if the life guards had been vigilant, as they should have been, the plaintiffs' son would not have lost his life by drowning.

(5) That the point, at which plaintiffs' son's body was found, was not more than 10 feet away from one of the platforms on which a life guard was supposed to be stationed, and that if he had been alert, he would have discovered plaintiffs' son before the child was drowned.

It is further alleged that the New Orleans City Park Improvement Association operated the swimming pool in their proprietary capacity and for profit and did not exercise a governmental or public function in so doing. It is further alleged that prior to the date of the accident, the New Orleans City Park Improvement Association caused a policy of insurance to be issued by the defendant; that the said policy was in force and effect at the time of the accident; and that the defendant agreed to indemnify the insured against loss, by reason of liability imposed upon it, for damages on account of death or bodily injuries suffered by any person or persons, not employed by the insured, as a result of an accident occurring during the policy period.

Judgment was prayed for against the defendant in the sum of $ 10,000, which is the limit of the defendant's liability under its contract of insurance with the New Orleans City Park Improvement Association.

To this petition an exception of no right or cause of action was filed which was sustained by the district court.

On appeal, this court, on first hearing, reversed the judgment maintaining the exception and remanded the case for trial on its merits. See Rome v. London & Lancashire Indemnity Company, 156 So. 64. The opinion was written by Mr. Justice Higgins, who was, at that time, a member of this court. Subsequently, a rehearing was granted and the first opinion and decree was recalled and there was judgment affirming the action of the district court in maintaining the exception of no cause of action. (La.App.) 157 So. 175. The plaintiffs thereupon applied for and obtained from the Supreme Court a writ of certiorari, and the Supreme Court reversed the second judgment of this court, overruled the exception of no cause of action, and approved the opinion of Mr. Justice Higgins (which had been handed down by this court on first hearing), and remanded the cause for trial on the merits. 181 La. 630, 160 So. 121.

After the record was returned to the district court, the defendant answered. The answer, in substance, denies all of the allegations of the petition, except that it admits that the plaintiffs' minor son was drowned in the said pool on June 3, 1933. It avers that plaintiffs' son had been forbidden by his parents to enter the swimming pool, and that he did so in direct disobedience to their orders, and was, therefore, guilty of contributory negligence. It also asserts that before the pool closed on the day of the accident plaintiffs' son, together with his playmates, left the pool; that the plaintiffs' son re-entered the pool after it was closed, and that, about 12:30 p. m., when the pool attendants learned from the companions of plaintiffs' son that he was missing, they at once discovered his body on the bottom of the pool, retrieved it, and made all possible efforts to revive the boy.

The answer further sets forth that the swimming pool is the property of the state of Louisiana and was being operated by the New Orleans City Park Improvement Association solely as the agent of the state and not for profit or as a private or proprietary function.

On these issues the case was tried and, at the conclusion of the hearing, the district judge found for the defendant on the following grounds:

(1) That the evidence shows that the New Orleans City Park Improvement Association is a corporation operated for the benefit of the public; that the swimming pool is conducted by it in its capacity as an arm of the government and not for profit; and that, accordingly, under the jurisprudence, it is not liable for the negligence of its agents or servants.

(2) That inasmuch as the New Orleans City Park Improvement Association may not be held in damages, the defendant, its insurance carrier, is likewise exonerated from liability; and

(3) That the plaintiffs failed to show that the New Orleans City Park Improvement Association was guilty of any negligence proximately causing the death of Allen Rome.

Wherefore this appeal.

At the threshold of this suit the question arises whether the New Orleans City Park Improvement Association is operating the swimming pool for profit, or in the performance of a governmental function.

Our decision on the law is controlled by the opinion of Mr. Justice Higgins in this case on exception of no cause of action (156 So. 64), which was approved by the Supreme Court on writ of certiorari (181 La. 630, 160 So. 121).

Under Act No. 130 of 1896, §3, it is provided that the duty of this association shall be to take charge and supervision of city park and its preservation for public recreation, to its gradual improvement and ornamentation as a place of resort and pleasure of the citizens of New Orleans.

The facts disclosed by the evidence of Mr. Dabezies, chairman of the swimming pool committee, is that the swimming pool is not conducted for profit, but makes a charge to patrons merely for the purpose of paying the operating expenses of the pool.

Under these circumstances, it follows that the City Park Improvement Association may not be sued for the torts committed by its employees while engaged in this public pursuit. We are of the opinion, however, that the exemption from liability afforded to the City Park Improvement Association is not properly based upon the doctrine that "The King can do no wrong." Under article 3 §35, of the Constitution of 1921, the state of Louisiana may only be sued with its permission, but it cannot be plausibly argued that the New Orleans City Park Improvement Association is the state. In truth, it is no more than a quasi public institution, created by private charter with the consent of the Legislature. It has been made a subdivision of the municipal corporation of the city of New Orleans, with supervision over the city park, and the city of New Orleans each year provides a fund, placed at the disposal of the association, for the upkeep of the park. Hence, it cannot be successfully contended that this association is the sovereign state of Louisiana and that the constitutional immunity from suit applies to it. However, it is exempt from liability in a suit involving its negligence while in the performance of governmental functions. The theory of governmental immunity has been recognized by this court and the Supreme Court in a number of cases and is ably set forth by Judge Janvier in the case of Orgeron v. Louisiana Power & Light Company et al., 19 La.App. 628, 140 So. 282, 285, where it is said: "In analogous situations, various courts have held that, though a state may create a special corporation to perform particular governmental functions, and that, though in the statute creating such corporation or agency or department, it may be provided that the said creature may sue and be sued, nevertheless such provisions merely permit suits in contract and for special purposes, but do not constitute permission to institute actions for tort. Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R.A. 251, Ann. Cas.1913E, 1033; Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, ...