79 So. 865 | La. | 1918
Joseph McCarthy was shot to death by Alexander Humphreys on one of the docks of the city of New Orleans, April-27, 1915. At that time Humphreys was a policeman assigned to duty under the Public Belt Railroad Commission of the City of New Orleans and was acting as special officer, Public Belt Railroad. The present action is by Mrs. Stella Jones, widow of McCarthy, suing in her individual capacity and as natural tutrix of her minor children, issue of her marriage with McCarthy, 'against the city of New Orleans for $30,000 damages for the negligent, wanton, and careless killing of her said husband. The district judge refused plaintiff’s demand, and she has appealed.
The record shows that the Public Belt Railroad Commission, as presently constituted, was created by ordinance of the council of the city of New Orleans, adopted October 4, 1904, for the purpose of. acquiring, maintaining, and operating a double-track public belt railway in the city of New Orleans for the benefit of the people of said city, in order to connect the freight and passenger terminals of the several railroad systems then or thereafter entering the city of New Orleans and to facilitate shipments to and from industrial plants already situ at-
When Humphreys killed McCarthy, he was a policeman, appointed in the same manner as all other members of the police force, and vested with the same authority, but assigned to the special duty of protecting the property which came under the control and in the custody of the Belt Railroad. It is not denied that he was acting within the scope of his employment when he did the shooting.
Plaintiff bases her right to recover on three propositions: (1) That the shooting was done negligently, wantonly, and carelessly; (2) that the Belt Railroad is a corporate or private enterprise, and its operation not a government function; and (3) that Humphreys, being an employs of the Belt Railroad, was performing a private duty not governmental or public in its nature.
“The distinction between the two capacities of a municipal corporation is important and must be constantly kept in mind, but it is not always easy to draw, as some functions are close to the line and are held governmental in some states but private in others, or even in .the same state are held governmental for some purposes and private for others.” R. C. L. vol. 19, p. 698.
If the city of New Orleans merely had authority from the Legislature to operate a belt railroad, that enterprise might ve'ry plausibly be held to be corporate or private in its nature; but according to section 3, Act 179, p. 256, of 1908, the maintenance of the Belt Railroad is imposed upon the city as a duty of such public importance that in case of failure, upon the part of the city to carry it out, the board of commissioners of the port of New Orleans is empowered, directed, and authorized to administer and operate the system. Whatever doubt may otherwise exist as to the nature of the function performed by the city of New Orleans in.acquiring, owning, and operating a belt railroad system, it must yield to the will of the sovereign thus clearly expressed, and the court cannot escape the conclusion ttiat such function is governmental and the city only an agency through which it is performed. We therefore hold that plaintiff’s second proposition is erroneous, and that the operation of the Belt Railroad by the city of New Orleans is a governmental function.
Judgment affirmed.