Swan v. The Riverside Bathing Beach Company

• Citation: 128 Kan. 230,276 P. 796
• Decision Date: 04 May 1929
• Docket Number: 28,682
• Parties: J. A. SWAN and MARY A. SWAN, as Next of Kin to Helen Swan, a Minor, Deceased, Appellants, v. THE RIVERSIDE BATHING BEACH COMPANY, Appellee
• Court: Kansas Supreme Court

276 P. 796

128 Kan. 230

J. A. SWAN and MARY A. SWAN, as Next of Kin to Helen Swan, a Minor, Deceased, Appellants, v. THE RIVERSIDE BATHING BEACH COMPANY, Appellee

No. 28,682

Supreme Court of Kansas

May 4, 1929

Decided January, 1929.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Governmental Functions--Imputing Immunity from Liability to Individual. The immunity of a city from liability for negligence in the performance of its governmental functions is not imputed to one who, under the contract referred to in the opinion, constructs and operates for profit a swimming pool on land leased from the city, so as to relieve him from liability for his own negligence.

A. L Billings, of Independence, for the appellants.

John Bertenshaw, Kirke C. Veeder, both of Independence, and O. W. Julien, of Kansas City, Mo., for the appellee.

OPINION

HARVEY, J.:

This is an action by the parents of a nine-year-old girl whose death is alleged to have been caused by the negligence of defendant, a corporation, which, under a contract with the city, had constructed and was operating a swimming pool or bathing beach on land owned by the city as a park. The trial court sustained a demurrer to the petition. Plaintiffs have appealed.

The sole question before us is whether the petition states facts sufficient to constitute a cause of action. It alleges that defendant, under an agreement with the city (set out as an appendix hereto), had constructed and owned, operated and maintained a bathing beach containing a pool of water, with equipment for water sports such as bathing, swimming and wading, all for hire and profit and under its management and control. It further alleged facts relating to the death of plaintiffs' daughter, and facts tending to show that such death resulted from the negligence of defendant, its servants and employees, and damages resulting to plaintiffs by reason thereof; but since it is not argued that the petition is defective in these respects we shall give them no further consideration.

It is well settled in this state that a city in the exercise of its governmental powers, under certain circumstances at least, may construct, maintain and operate a swimming pool in its park without the city being liable in damages to one injured there through the negligence of its officers or agents. ( Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014; Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493; Smith v. Fuest, 125 Kan. 341, 263 P. 1069; Warren v. City of Topeka, 125 Kan. 524, 265 P. 78, and authorities there cited.) But the city is not sued in this case, and we note this principle of law only for the bearing it may have on the liability of defendant. The question here is whether this governmental immunity of the municipality is imputed to or extends to the defendant so as to relieve it from liability; for, had defendant constructed this swimming pool on land which it owned, or leased from a private individual, firm or corporation, there would be no question of its liability for injury or death caused by its negligence.

We turn now to the contract which establishes the relation between the defendant and the city. We note, first, that even though defendant violated the provisions of this contract with the city, that of itself would not give rise to a cause of action in favor of plaintiffs, for the reason that neither plaintiffs nor their daughter were parties to that contract, or privies to it. (Warren v. City of Topeka, supra, syl. P 3.) We examine this contract to see if the municipal immunity from liability for negligence is imputed to defendant with respect to its own negligence. It is not necessary to quote extensively from the contract, for it is set out in full. We note, however, that it expresses the desire of defendant to construct and maintain a swimming pool and to lease from the city a site for that purpose, and by the instrument the city does make such a lease to defendant. This presents a situation entirely different from that before the court in Bailey v. City of Topeka, supra, for it was there said that the provisions did "not amount to the leasing of any part of the park." (p. 329.) Considered as a whole the defendant in this contract acquired a site on which to construct, at its own expense (except as to certain excavating and drives and walks), a bathing beach or swimming pool, and to maintain and operate the same for profit. It is true the city reserved certain rights with respect to policing the premises, but since the place was within the city park perhaps it would have had such rights anyway. Other details of the contract might be mentioned, but they do not vary its general purpose from that above stated.

Defendant relies on Warren v. City of Topeka, supra, where the city and one Torsney, who had a contract with the city with respect to conducting a swimming pool in the city park, were sued jointly for a wrongful death alleged to have resulted from negligence in conducting the swimming pool. It was there held that neither the city nor Torsney was liable, for the reason, as to the city, because of its immunity from such liability, and as to Torsney, because under the contract there involved he was held to be more nearly an employee. We do not care to extend the doctrine by which Torsney was relieved from liability in that case. (See annotation on that case, 57 A. L. R. 560; 42 Harvard Law Review, 282.) But the contract there under consideration was quite different from the one involved in this case. Under the contract before us it cannot be held that defendant was an employee of the city for the purpose of carrying out its governmental function. The result is that defendant's contract with the city does not relieve it from its own negligence. It had the duty common to individuals, firms or corporations of using due care in the conduct of its business, and if, through its negligence in so conducting its business, loss or injury result, it cannot escape liability simply because of this contract or the fact that it had leased the ground on which to construct its improvements and operate its business from the city rather than from a private individual.

The judgment of the court below is reversed.

APPENDIX.

This agreement made and entered into this first day of October, 1926, by and between the city of Independence, a municipal corporation acting by and through its duly constituted officers, first party, and R. W. Arnold, of Independence, Kan., second party.

Whereas, First party is a municipal corporation owning certain real estate hereinafter described; and

Whereas, Second part...