DocketNumber: [No. 54, October Term, 1937.]
Citation Numbers: 195 A. 571, 173 Md. 267, 1937 Md. LEXIS 308
Judges: Bond, Urner, Offutt, Parke, Sloan, Mitchell, Shehan, Johnson
Filed Date: 12/10/1937
Status: Precedential
Modified Date: 11/10/2024
Marie Blueford, aged eleven, daughter of William and Alice Blueford, left her home at 39 East York Street at about 1:30 o'clock p.m., on June 26th, 1933, to go to a swimming pool in Riverside Park, in Baltimore. Nothing more was heard of her until her body was found a few hours later at the bottom of the pool. The park is one of the public parks of Baltimore City, and the pool a public swimming pool maintained and managed *Page 269 by the city. At the time of the accident a fee of five cents was charged for the use of the pool, a bathing suit, a locker and towels. The pool is elliptical in shape, and slopes uniformly from zero at its edge to about eight and a half feet in the center. It is 280 feet long and 180 feet wide, and is enclosed by a nine-foot wire fence. It is divided into an inner and outer zone, separated by a wire fence extending four and a half feet from the bottom of the pool. The inner zone is about 120 or 125 feet long and 90 feet wide, and is for the use only of swimmers, the outer or shallow zone is for the use of small children and persons who cannot swim. Entrance to the inner pool is through a gate at either end. Two guards are required to be on duty, when the pool is in use, to protect the bathers. One is stationed on a raft, the other rows a boat about the pool. Their duty is to maintain order, to protect the bathers from danger, and to see that none but persons able to swim are permitted within the inner or deep water zone. On the fence separating the zones signs, warning the bathers of the dangers of the inner zone and bearing the legend, "Deep water, for swimmers only," appeared at the time of the accident. The body was found in the inner zone near the fence, about midway between the two gates, where the water would have been over four feet deep. About 800 persons used the pool on the day of the accident, and at the time the body was found from twenty-five to forty persons were using it, of whom about fifteen were in the inner zone.
The guards were on duty on the day of the accident, but neither of them saw Marie Blueford, nor did any other witness in the case see her there or know when or under what circumstances she disappeared.
Several months after the death of Marie Blueford, her parents brought this action in the Baltimore City Court against the Mayor and City Council of Baltimore to recover damages for the loss which they sustained as a result of her death, on the theory that the city's employees were negligent in permitting Marie to enter the *Page 270 inner zone, and also in allowing her to drown when they knew, or should have known, that she was in danger. A demurrer to an amended declaration which presented that theory was overruled, and the case was tried before the court and a jury. The trial resulted in a verdict for the plaintiffs, and upon that verdict the judgment from which this appeal was taken was entered.
There are five exceptions in the record, of which four relate to rulings on evidence, the other, the fifth, to the rulings on the prayers. Of the exceptions to the evidence the only one argued in this court was the second, noted to the action of the court in admitting in evidence a transcript of a death certificate issued by the health department of Baltimore City, in which appeared the statement that an autopsy had disclosed that the cause of death was drowning. The transcript was not authenticated, it was hearsay and irrelevant, and should have been excluded. Standard Gas Equipment Co. v. Baldwin,
The plaintiffs offered two prayers which were granted, the defendant sixteen, of which eight were granted and eight refused. Although it excepted to the adverse rulings in respect to the plaintiff's prayers and to the refusal of its second and third prayers, no objection to those rulings was argued in this court, and they may be disregarded except in so far as the granting of the plaintiff's prayers was inconsistent with the theory presented *Page 271 by the defendant's demurrer prayers. The important questions in the case are raised by the refusal of the defendant's A prayer, a general demurrer to the evidence, its B prayer that there was no legally sufficient evidence of primary negligence, its D prayer that the decedent was guilty of contributory negligence as a matter of law, and its F prayer that in maintaining the pool the city was exercising a governmental function and was not subject to liability for any negligence or fault in the performance thereof.
In orderly sequence the question first to be decided is whether the municipality is subject to liability for negligence or other default in the maintenance and management of the swimming pool.
It is an elementary and firmly established principle of municipal law that the state cannot be sued in its own courts without its consent. 59 C.J. 300; State v. Wingert,
The definite and precise question submitted in this case is therefore whether the management and maintenance of a public swimming pool in a public park by the municipality is a governmental function.
Whether the maintenance of a public park by a municipality is a governmental function is a question upon which the conclusions of the several jurisdictions of the nation are not in harmony.McQuillen, Mun. Corp. sec. 2850, notes 71 and 72; 99 A.L.R. 689; 42 A.L.R. 264; 29 A.L.R. 868; 43 C.J. 1170, 1172. But the rule supported by what is said in Alder v. Salt Lake City
(1924)
And, while the great weight of authority supports the rule that, where the Legislature confers upon a municipality, such as a city, or a quasi municipality, such as a county, the care and control of the public highways, charges it with the duty of keeping the same in repair, and grants to it the power and the funds or the means of securing funds to adequately perform the duty, that it is responsible for any negligent or wilful failure to do so, there is respectable authority to the contrary.McQuillen, Mun. Corp. secs. 2901-2902. But the two principles, one that a municipal corporation is not liable in a civil action for any default or neglect in the performance of a purely governmental function, and the exception that it is liable for failure to keep the public highways under its management and control in a reasonably safe condition, are too firmly embedded in our law to be disturbed now.
Assuming, upon the authority of Baltimore v. State, use ofAhrens, supra, that the maintenance and management of a public park is a governmental function, the next inquiry is whether the maintenance and management of a public swimming pool in such a park is also a governmental function. In connection with that question the fact that the city charged a small fee for entrance to the pool has been held to be relevant, in determining whether it acted in a public or private capacity. *Page 274
The same reasoning which led to the conclusion announced inBaltimore v. State, use of Ahrens, supra, that the maintenance and operation of the public parks of Baltimore City was a public, governmental, and political function, necessarily leads to the conclusion that the maintenance of such a public convenience as a swimming pool is also a governmental function. As stated by Judge Mitchell, speaking with force and clarity for this court inBaltimore v. State, use of Ahrens, supra, public parks are vitally necessary to the public health and welfare, in the congested centers of population, in affording a temporary escape from the noise and dust and jostling of crowded city streets. So, too, swimming or wading pools and other public facilities for bathing have a direct and necessary relation to the public health in affording to the masses who are unable to go to the seashore or to inland lakes, or ponds or streams beyond the city, some opportunity of lessening the dangers and discomforts which are inseparable from the depressing and exhausting heat of the summer season. Such pools are maintained solely for the public comfort and convenience, the municipality derives no profit from them, they do afford the public relief from conditions which might otherwise be intolerable and dangerous, which many of them could secure in no other way.
Accordingly it has been held under varying circumstances that the maintenance of a public beach, or swimming pool, is a public governmental function, McQuillen, Mun. Corp. sec. 2859, although there is authority to the contrary, Id., 99 A.L.R. 694; 43 C.J. 1173; 51 A.L.R. 370; Crone v. El Cajon,
"The constitutionally authorized function this municipality was exercising was without private gain to the corporation or to individuals, for purposes essentially public and of a beneficial character in furtherance of the common welfare in harmony with the general policy of the state, and was in its nature a governmental activity, whether it be put upon the ground of health, education, charity, social betterment by furnishing the people at large free advantages for wholesome recreation and entertainment, or all of them.
"As applied to public parks of this nature, the fundamental proposition of the Massachusetts rule, which this court has generally approved, is well sustained by the reasoning in the following cases and those they lead to: Tindley v. Salem, supra
(
But in truth there is no universally accepted or all *Page 276 inclusive test to determine whether a given act of a municipality is private or governmental in its nature, but the question is usually determined by the public policy recognized in the jurisdiction where it arises. As stated above, the question is not altogether one of first impression in this state, but in principle has been decided in Baltimore v. State, use of Ahrens,supra, but, if it were a sound public policy resting upon the principles of the common law, it would lead to the conclusion announced in that case. Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature. And it is better that the adequate performance of such an act be secured by public prosecution and punishment of officials, who violate the duties imposed upon them in respect to it, than to disburse public funds, dedicated to the maintenance of such public conveniences as public parks, playgrounds, hospitals, swimming pools, and beaches, maintained at the public expense, to private persons who have suffered loss through the negligence or default of municipal employees or agents charged with their management.
That conclusion is not affected by the fact that the duty of maintaining public parks in Baltimore City is permissive (Baltimore City Charter, sec. 6, subsec. 16) and not mandatory upon the municipalty, (Heino v. City of Grand Rapids, supra) nor by the fact that there is no specific authority for the maintenance of swimming pools, for they may naturally be included in the authority to maintain the parks in which they are located and of which they are a part.
Nor is it affected by the fact that a nominal fee was exacted for the privilege of using the pool, for in the eleven years of its existence the fees collected have never been sufficient to pay the expenses of maintaining the pool, and the deficit has been met from the general funds *Page 277 of the city. 99 A.L.R. 694, 29 A.L.R. 874, 42 A.L.R. 265.
It follows that the appellant's A and F prayers should have been granted, and, because of their refusal, the judgment appealed from must be reversed. In view of that conclusion, the rulings in respect to the other prayers may not be considered.
Judgment reversed, with costs to the appellant, without a newtrial.
Railroad Co. v. Maryland , 22 L. Ed. 678 ( 1875 )
Wynkoop v. Mayor of Hagerstown , 159 Md. 194 ( 1930 )
Russell v. City of Tacoma , 8 Wash. 156 ( 1894 )
Mayor of Baltimore v. State , 168 Md. 619 ( 1935 )
Mayor of Baltimore v. Eagers , 167 Md. 128 ( 1934 )
County Commissioners v. Wilson , 97 Md. 207 ( 1903 )
State Ex Rel. Schiller v. Hecht Co. , 165 Md. 415 ( 1933 )
Algave v. Mayor and City Council of Ocean City , 5 F. Supp. 2d 354 ( 1998 )
Hecht v. Des Moines Playground & Recreation Ass'n , 227 Iowa 81 ( 1939 )
Burns v. Mayor of Rockville , 71 Md. App. 293 ( 1987 )
Higgins v. City of Rockville , 86 Md. App. 670 ( 1991 )
County Commissioners v. Love , 173 Md. 429 ( 1938 )
University of Maryland v. Maas , 173 Md. 554 ( 1938 )
Mayor of Baltimore v. Peabody Institute , 175 Md. 186 ( 1938 )
Town of Port Deposit v. Petetit , 113 Md. App. 401 ( 1997 )
Lohr v. Upper Potomac River Commission , 180 Md. 584 ( 1942 )
Cox v. Board of County Commissioners , 181 Md. 428 ( 1943 )
Gregg Neck Yacht Club, Inc. v. County Commissioners , 137 Md. App. 732 ( 2001 )
Gibson v. Housing Authority , 142 Md. App. 121 ( 2002 )
State Ex Rel. Wilkerson v. Baltimore County , 218 Md. 271 ( 1958 )
E. Eyring & Sons Co. v. Mayor of Baltimore , 253 Md. 380 ( 1969 )
Godwin v. County Commissioners , 256 Md. 326 ( 1970 )
Benjamin v. Woodring , 268 Md. 593 ( 1973 )
Moberly v. Herboldsheimer , 276 Md. 211 ( 1975 )
O & B, Inc. v. Md.-Nat'l Cap. P. & P. Commission , 279 Md. 459 ( 1977 )
Tadjer v. Montgomery County , 300 Md. 539 ( 1984 )
Kelly v. Marylanders for Sports Sanity, Inc. , 310 Md. 437 ( 1987 )