Sherman v. Parish of Vermillion

• Decision Date: 03 April 1899
• Docket Number: 13,054
• Court: Louisiana Supreme Court
• Parties: EMANUEL SHERMAN AND WIFE v. PARISH OF VERMILLION ET AL

25 So. 538

51 La.Ann. 880

EMANUEL SHERMAN AND WIFE v. PARISH OF VERMILLION ET AL

No. 13,054

Supreme Court of Louisiana

April 3, 1899

Submitted February 8, 1899

ON APPEAL from the Seventeenth Judicial District Court for the Parish of Vermillion. DeBaillon, J..

Walter J. Burke & Bro., Weeks & Weeks, and W. B. White, for Plaintiffs, Appellants.

M. T Gordy and Gus. A. Breaux (Clegg & Quintero, of Counsel), for the Parish of Vermilion, Defendant and Appellee.

W. W Edwards, and Edwards & Greene, for J. O. Hebert, Sheriff and Sureties, Defendants, Appellees.

BREAUX J. MR. JUSTICE MONROE takes no part, as he was not a member of the court when the case was heard.

OPINION

BREAUX J.

Plaintiffs, the father and mother of the deceased, seek to recover damages in the sum of $ 25,000 for the death of their son.

They in substance, in their petition, set forth that their son George, while serving on jury in a criminal case, and while in care of the deputy sheriff, under the order of the presiding judge that they should not separate, he, their son, and the other members of the jury were conducted, in the night time, out of the courthouse, at the request of some of the members of the body, to repair to the closets near the courthouse. They allege that they were compelled to avoid going into the closets for the reason that they were unclean and negligently kept.

They charge that the deputy sheriff was culpably negligent in giving their son and the other members direction to go to a given spot in the dark, which, instead of being, as should have been, a safe place, was a pit (that the police jury had given permission to dig out) in which he fell, and fatally injured himself; that their son knew nothing of that particular place at which he fell, and nothing of the danger to which he was exposed, and in regard to which he was not warned; that in following the direction of the deputy sheriff, no notice was given to their son, and no light was furnished him as should have been furnished, if the officer had been ordinarily careful; that the pit had been there many years to the knowledge of the officer.

The defendant filed the plea of no cause of action. The District Court sustained the plea, and dismissed plaintiffs' action.

From the judgment of dismissal plaintiffs present this appeal.

Our researches have not resulted in our finding authority in support of the position that parishes can be compelled to respond in damages for the negligence of the deputy sheriff to take proper care of the jury placed in his charge by the presiding judge in a criminal case.

Police juries have authority of administration of parish affairs, and have nothing to do with the trial of criminal cases.

They, under delegated powers, expressed or implied, represent the parish.

We have followed the argument of counsel for plaintiff, and have given some attention to the jurisprudence of the several States of the Union regarding the subject before us.

The contention of plaintiff is that the jurisprudence in States where a county or town system prevails, is necessarily different, and has no application in this State. We, on the other hand, find that, whether, as relates to town, county or parish, these divisions, towns, counties or parishes, have only such power as is vested in them by sovereign authority.

As relates to the parishes (to meet the proposition pressed by plaintiffs that they have greater power than towns or counties in other States), we, to some extent, traced the meaning of the word to its origin. In France it was the ecclesiastical division of the territory, "the spiritual, and, in some particulars, temporal" division; i.e., the district in charge of a curate, and, originally, of the curati.

The colonists of Louisiana became accustomed to similar divisions of territory in church matters. In the course of time it was used to indicate political divisions of the State.

From the earliest days there were parishes in the territory; parishes at first, afterwards parroquia under Spanish rule; and when the State was admitted into the Union, the French name was retained, to indicate the civil divisions of the State; but the responsibility of the parishes and of the taxpayer is limited by legislation, just the same as they are in other States of the Union.

They, the county and parish, have only delegated powers, and such needful powers as are necessary to carry out the delegated powers.

So, as far as we have been able to examine, all the well considered decisions hold that the political divisions of the State are not responsible for damages in cases such as the one before us for decision. The decisions generally hold that, in such cases, the political divisions of the State represent the sovereign, and, therefore, are not responsible for damages.

Those decisions apply, we think, in our State, as they do where the town and county system prevails.

The complaint is directed against the parish for neglecting to provide suitable closets, and for having left open a dangerous pit near the courthouse.

In the light of judicial decisions, the parish is not liable in an action by a party injured because of the neglect of an officer to perform a corporate duty in a criminal case unless such action is given by statute. Cooley on Constitutional Limitations, p. 246.

Such a suit, as the one here, can not be sustained without statutory sanction.

The exemption from liability, it has been decided, does not apply to villages, boroughs or cities, which accept special privileges from the State covering larger powers, and conferring more valuable privileges. Ib., 247.

Municipal corporations, it is held in many decisions, are made such whether they will or not, and can not be considered in the light of persons who have voluntarily, and for a consideration, assumed obligations, so as to owe a duty to every person interested in the performance. Ib., 245.

Cooley, from whom we have freely quoted, cites in support of his text on Constitutional Limitations, the carefully considered case of Eastman vs. Meredith, in which it was decided, on the principle as stated, that the town is not liable for an accident caused by the floor giving way of an imperfectly constructed townhouse (the imperfect construction was the work of the town).

The exemption of legislative officers is plain, is the view of Cooley on Torts.

"The legislature has full discretionary authority in all matters of legislation, and it is not inconsistent with this authority that members should be called to account at the suit of individuals for their acts and neglects. A discretionary power is, in its nature, independent." Page 376.

This commentator affirms that the principle applies to inferior legislative bodies, such as board of supervisors, councils, and the like. Page 376.

This principle was recognized by this court in several decisions; notably, Lewis vs. City of New Orleans, 12th Ann., 190; Stewart vs. City of New Orleans, 9th Ann., 461.

We find in 12th Ann., supra, a striking illustration.

Judge Spofford dissented in the case just cited against the City of New Orleans, but he was the organ of the court in King vs. St. Landry, 12th Ann., 859, in which it was held that "no remedy is given by statute against a parish for private injury."

In 9th Ann., 461, supra, the syllabus reads, "a municipal corporation in the exercise of power which it possesses for public purposes, and which it holds as part of the country, enjoys the exemption of government from responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power."

The syllabus covers fully the principles announced in the decision.

To the same effect is Dillon on Corporations, Vol. 2, p. 969.

"In the absence of a statute giving a remedy, public or municipal corporations are under no liability to pay for property of individuals destroyed by a mob." Add. Torts, 1305...