Rome v. London & Lancashire Indemnity Co. of America

• Decision Date: 04 March 1935
• Docket Number: 33199
• Citation: 160 So. 121,181 La. 630
• Parties: ROME v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA
• Court: Louisiana Supreme Court

160 So. 121

181 La. 630

ROME v. LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA

No. 33199

Supreme Court of Louisiana

March 4, 1935

Judgments of the Court of Appeal and of the civil district court reversed and set aside, exceptions of no cause or right of action overruled, and case remanded.

Henican & Carriere and C. Ellis Henican, all of New Orleans, for applicants.

Rene A Viosca and Miller, Bloch & Martin, all of New Orleans, for respondents.

FOURNET Justice. HIGGINS, J., recused. O'NIELL, Chief Justice concurring.

OPINION

FOURNET, Justice.

This is a tort action instituted by parents for the death of their minor son who was drowned in the city park swimming pool, in the city of New Orleans, against the insurance carrier of the New Orleans City Park Improvement Association, under Act No. 55 of 1930.

The defendant filed exceptions of no cause or no right of action, based on the ground that the City Park Improvement Association, defendant's assured, is engaged in the performance of governmental functions only and, therefore, not liable for tort. The exceptions were sustained by the lower court, and plaintiffs appealed.

The Court of Appeal reversed the judgment of the lower court and ordered the case remanded to the civil district court for the parish of Orleans for further proceedings. 156 So. 64.

On a rehearing granted by it, the Court of Appeal recalled and annulled its former decree and affirmed the judgment of the lower court. 157 So. 175.

The matter is now before us for review on writs of certiorari granted by this court.

It is the well-settled jurisprudence of this state that the powers and obligations of municipal corporations are two-fold; (1) those that are of a public nature, and (2) those that are of a private nature. Under the first classification, the city is exempt from liability for tort, and under the second classification, it is held to the same responsibility for its torts as an individual. Burton v. Salt Lake City, 69 Utah 186, 253 P. 443, 51 A. L. R. 364; Foss v. Lansing, 237 Mich. 633, 212 N.W. 952, 52 A. L. R. 185; Solomon v. City of New Orleans, 156 La. 629, 101 So. 1; Davis v. New Orleans Public Belt R. R., 155 La. 504, 99 So. 419, 31 A. L. R. 1303; Hall et al. v. City of Shreveport, 157 La. 589, 102 So. 680; Howard v. City of New Orleans, 159 La. 443, 105 So. 443.

It is alleged in the petition that the swimming pool, in which the plaintiffs' son lost his life, was being operated at the time by the New Orleans City Park Improvement Association, a corporation organized under the laws of the state of Louisiana, with its domicile in the city of New Orleans; that the pool was being operated by the association as a proprietary function, for profit, and in the same manner as other private swimming pools were being operated in the city of New Orleans; that a fee of 25 cents was charged to those who used the pool; and that it was through the negligence of the association's employees that the boy drowned.

The exception of no cause or right of action must be disposed of on the face of the petition alone, and the allegations thereof must be accepted as true. Trumbaturi v. Katz & Besthoff, Limited, 180 La. 915, 158 So. 16, 17.

We have carefully considered the two opinions of the Court of Appeal and we are of the opinion that the one rendered in the first instance, reported in 156 So. 64, is sound, and we follow the reasoning therein expressed. No useful...