Vaughn v. City of Alcoa

• Decision Date: 07 June 1952
• Citation: 251 S.W.2d 304,30 Beeler 449,194 Tenn. 449
• Parties: , 194 Tenn. 449 VAUGHN v. CITY OF ALCOA.
• Court: Tennessee Supreme Court

Page 304

251 S.W.2d 304

30 Beeler 449, 194 Tenn. 449

VAUGHN v. CITY OF ALCOA.

Supreme Court of Tennessee.

June 7, 1952.

Jennings, O'Neil & Jarvis, Knoxville, for plaintiff in error.

J. C. Gamble, Maryville, R. R. Kramer, Knoxville, for defendant in error.

BURNETT, Justice.

This case is before us on an appeal from the action of the trial judge in sustaining a demurrer to a declaration filed by the plaintiff in error.

The suit was by the administrator for the death of his minor daughter who was killed while in swimming in a swimming pool belonging to the City of Alcoa.

The declaration is succinctly and fairly summed up by the appellees on their brief as follows:

'That City of Alcoa maintained a swimming pool in Alcoa for the use and enjoyment of persons living both within and without the City and for use of which it charged a fee and from which it made a profit; that by advertisements the defendant invited persons both within and without the City of Alcoa to use said pool; that both plaintiff and his minor daughter, Betty Ann Vaughn, resided outside said City on June 20, 1950 and that plaintiff at the time of suit likewise lived outside said City; that plaintiff's said daughter who was 9 years old paid the required fee and entered the pool on June 26, 1950; that after playing in the shallow end of the pool for awhile she was placed by her cousin on a seat near the deep end, from which she went to a ladder at the deep end where she was seen by one of the City's life guards who asked her if she could swim and whom she told she could not; that said life guard told her she had better go to the shallow end but failed and neglected to remove her from the perilous position she was in; that the City was guilty of gross negligence in that after it discovered, or by the exercise of ordinary care should have discovered, the peril of the child, the City having the last clear chance to extricate her from her position of peril, negligently and wantonly abandoned the child and allowed her to drown; that at the time and the place the City had an inadequate number of guards, having only one near the place where the child was; that most of the guards were inexperienced and untrained; that in maintaining said pool the City was negligently maintaining a dangerous nuisance attractive to children, including plaintiff's child; that on account of the tender age of the child she was without fault or negligence on her part; that the misconduct of the City was the proximate cause of the death of plaintiff's child.'

The second count of the declaration is to all intents and purposes identical with that above analyzed but specifically alleges that the City in operating the swimming pool, as above set forth, was doing so in its proprietary function as opposed to a governmental function. The three grounds of the demurrer sustained by the trial judge aver, in effect, that the operation of this pool was done by the City in a governmental and not a proprietary function and that therefore the City was not liable for the death of this child; that the allegations were not sufficient to charge a nuisance in the construction and maintenance of this swimming pool; and that the maintenance of the swimming pool was not an attractive nuisance for which the City would be liable in damages for the death of this child.

In this State a municipality is liable in damages for tort to its citizens only if it was negligent in the operation of one of its proprietary functions as distinguished from its governmental functions or if it created or maintained a nuisance in the performance of one of its governmental functions. When we thus consider the questions presented in the present case they would necessarily resolve themselves into the inquiry, first, whether the operation of the swimming pool by the City of Alcoa was a governmental or a proprietary function, and second, if the operation of the pool was a governmental function, whether or not the City created or was maintaining a nuisance.

This Court has aligned itself with those jurisdictions in this Country which hold that a municipality, in maintaining a public park, is engaged in a governmental activity,--discharging a public duty,--and is therefore not liable for injuries caused through negligent conditions therein. Mayor and City Council of Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, L.R.A.1915D, 1108; Rector v. City of Nashville, 1939, 23 Tenn.App. 495, 134 S.W.2d 892.

'The tendency of authority in more recent years has been to allow municipalities a wider range in undertaking to promote the public welfare or enjoyment. Generally, anything calculated to promote the education, the recreation, and the pleasure of the public is to be included within the legitimate domain of public purposes.' 37 Am.Jur., Sec. 128, page 742.

Public parks, playgrounds, swimming pools, and public golf courses are all examples of municipal functions undertaken for the public benefit, and are under our decisions conducted by the City in its governmental capacity as distinguished from its proprietary capacity. The cases by no means from other jurisdictions are in accord and there is quite a diversity of opinion on this subject but we have aligned ourselves with those cases from those jurisdictions holding that such an act on the part of a municipality is a governmental function. For a general treatment of this subject see, 29 A.L.R. 862; Warden v. Grafton, 99 W.Va. 249, 128 S.E. 375, 42 A.L.R. 263; Williams v. Longmont, 109 Colo. 567, 129 P.2d 110, 142 A.L.R. 1340.

The legislature in enacting the charter for the City of Alcoa granted that City this privilege. The City was granted the privilege to maintain recreative facilities in the same sentence that it was granted the privilege to maintain charitable, educational and other like duties all of which are governmental functions.

The problem that has given us the most concern is the fact that the City of Alcoa advertises this swimming pool extensively and charges an admission fee to the public for the use of the pool. A collection of cases of various jurisdictions treating on this subject will be found in 142 A.L.R. beginning on page 1370. Some of these cases hold that by the charging of the fee the use of the pool or park or etc., is made proprietary as distinguished from governmental while others hold to the contrary. In the case of Baltimore, Mayor and City Council of v. State, 1937, 173 Md. 267, 195 A. 571, the Maryland court held that by charging a nominal fee to children for using a public swimming pool did not constitute the use of the pool a proprietary as distinguished from a governmental function of the municipality and that the municipality was immune from suit for damages sustained by reason of the drowning of a child bathing in such pool. The courts of Kansas and Iowa held the same way. See Hannon v. Waterbury, 106 Conn. 13, 15, 136 A. 876, 57 A.L.R. 402; Mocha v. Cedar Rapids, 204 Iowa 51, 214 N.W. 587; Warren v. Topeka, 125 Kan. 524, 265 P. 78, 57 A.L.R. 555; Harper v. Topeka, 92 Kan. 11, 139 P. 1018, 51 L.R.A.,N.S., 1032. In the Burns case, supra, this Court concluded that the operation of parks was a governmental function, it expressly followed the decisions of the courts last above cited, that is from Kansas, etc. We thus feel that the courts of this State are aligned with those decisions. Be this as it may, this Court in the case of Town of Pulaski v. Ballentine, 153 Tenn. 393, 284 S.W. 370, held that the Town in operating a public cemetery was doing so as a governmental function even though it charged individuals fixed prices for the lots. This Court likewise in Nashville Trust Company v. City of Nashville, 182 Tenn. 545, 188 S.W.2d 342, 344, said: 'An incidental charge for a public service does not render the service private or corporate.' The Kansas court in the case of Shoemaker v. City of Parsons, 154 Kan. 387, 118 P.2d 508, 511, said: 'The contract provided that the city should provide water, electric current and chemicals necessary to keep the pool in operation. It does not appear either in the petition or the contract that the taking of this fifty per cent enabled the city to make a profit. Furthermore, should there have been a profit incidental to the operation of the pool such would not constitute the transaction as proprietary rather than a governmental one. See Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014, L.R.A.1916D, 491. The manner in which the details of the business of paying for the right to operate the pool is managed is not the controlling element. The test is whether the activity is carried on for the use and benefit of the general public. Applying this test, we have held many times that swimming pools operated as this one were operated for the use and benefit of the general public, and that the city was not liable for the negligence of its officers in carrying on such an activity.'

The declaration alleges that the City is liable because of the 'last clear chance' doctrine. This doctrine is an arbitrary exception to the law barring recovery for contributory negligence of the plaintiff based upon the theory that the defendant is negligent in not extricating the plaintiff from his place of danger after it is discovered or should have been discovered, notwithstanding the fact that the plaintiff was guilty of contributory negligence in placing himself in danger. Probably the first reported case on the subject, and one that all of us studied in law school is the English case of Davies v. Mann, 10 M & W, 546, 549, 152 Reprint 588, 19 ERC 190. This doctrine has been enunciated under a proper state of facts at various times in this State. The doctrine though can have no application in the case now before us because liability of the City is denied on the ground that the City cannot be held for negligence of its officers in the operation of a governmental function.

The attractive nuisance doctrine is also raised by...