Bardinelli v. Church of All Nations

YORK, P. J.

This action for damages for the death of a six-year-old child, brought by the mother of said child against defendant corporation, Los Angeles Missionary and Church Extension Society of the Methodist Episcopal Church, and its individual agents and employees, was tried by the court sit

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ting without a jury upon a stipulated statement of facts. It appears therefrom that the said defendant corporation owned and operated the All Nations Boys Club and admitted thereto the children of the poor and needy of that section of the city of Los Angeles adjacent to the said club, and allowed them the use of its gymnasium, workshops and shower-rooms and furnished entertainment to large groups of young children in order to keep them off the city streets. On February 29, 1936, while plaintiff’s young son was playing about the club, he climbed upon a fire escape, maintained- on the outside of the club building and extending from the second floor thereof to the roof, and fell to his death upon the sidewalk below.

Judgment for $2,500 was rendered against appellant corporation, the individual defendants being absolved from liability. Its motion for new trial having been made and denied, appellant corporation seeks a reversal of the judgment on the ground that it is an eleemosynary institution and therefore exempt from liability for negligence.

Respondent admits, and it was found by the court, that appellant corporation was organized and existing solely for charitable and nonprofitable purposes and that all of its servants were selected with due care, but she maintains that the negligence of appellant in failing to employ sufficient employees to properly discharge its duties and obligations, arid its negligence in failing to make proper use of the employees which it had in its employ to meet and discharge its obligations is the negligence of the corporation itself in the discharge of its administrative duties which cannot be attributed or charged to its employees. This contention is based on the admitted fact that at the time the accident occurred only one employee was on duty, and respondent argues that this was not a sufficient number to properly supervise the boys then and there attending the institution.

No authority is cited in support of this last contention, nor does any reason appear for attaching liability under such circumstances. Especially is this true when it appears to be the settled law that an eleemosynary and charitable institution is not liable to a beneficiary thereof for the negligence of its agents and servants unless it has failed to use due care in the selection of such agents