The opinion of the court was delivered by: John E. Miller, District Judge.
The original complaint in the instant case was filed on April
19, 1955, by William Bertie Handley and his wife, as parents and
next of kin of Margaret Yvonne Handley, deceased, and by William
Bertie Handley as the administrator of the estate of the
deceased, against the defendant, the City of Hope, Arkansas, a
Plaintiffs alleged that the defendant was conducting and
operating a swimming pool in the City of Hope, Arkansas; that the
City derived income from said enterprise, and the same was being
operated in a proprietary or corporation capacity; that the pool
was operated exclusively for the use and benefit of the Caucasian
race; that the patrons thereof were not limited to residents of
the City of Hope, but that all persons able and capable of paying
an admission fee were admitted.
Plaintiffs further alleged that on June 23, 1954, the deceased,
Margaret Yvonne Handley, a child 11 years of age, was accepted as
a customer of the said swimming pool; that on said date the child
was drowned as a result of the negligence of the defendant in
failing to keep adequate lifeguards on duty; and that the
lifeguards were negligent in failing to keep a lookout and in
failing to rescue the deceased after they were notified that she
had inadvertently stepped into water over her head. Other
specific allegations of negligence were made in the complaint,
and plaintiffs sought damages as a result of the death of
Margaret Yvonne Handley.
On June 6, 1955, the defendant filed a motion for a more
definite statement, and on June 15, 1955, the Court overruled
defendant's motion. However, on said date the Court entered an
order dismissing the complaint as to the plaintiffs, William
Bertie Handley and wife, individually, leaving William Bertie
Handley as administrator the sole party plaintiff. This order was
under the Arkansas law, when a personal representative has been
appointed he is the only person who may maintain a suit for
damages for wrongful death, and he is entitled to recover all
damages resulting from the wrongful death, both for the benefit
of the estate and the next of kin. Reed v. Blevins, 222 Ark. 202,
258 S.W.2d 564; Southwestern Gas & Electric Co. v. Godfrey,
178 Ark. 103, 10 S.W.2d 894.
The defendant filed its answer on June 20, 1955, in which it
denied the allegations of plaintiff's complaint and pleaded
contributory negligence on the part of the deceased and her
parents as a defense to plaintiff's claim.
On September 3, 1955, the plaintiff filed certain requests for
admissions, and on September 10, 1955, the defendant responded to
said requests for admissions. However, defendant's answer to the
requests for admissions was not sworn to, and as a matter of law
the requests for admissions stand admitted. Sieb's Hatcheries,
Inc., v. Lindley, D.C.W.D.Ark., 13 F.R.D. 113; Heuer v. Basin
Park Hotel and Resort, D.C.W.D.Ark., 114 F. Supp. 604. The
requests for admissions, which must be deemed as admitted,
establish that the defendant operated a swimming pool in the City
of Hope; that admissions were charged; that all members of the
Caucasian race were admitted to said pool and that it was being
operated exclusively for the use and benefit of the Caucasian
race; that the residents of the City of Hope are not exclusively
members of the Caucasian race; that the deceased was accepted as
a customer on June 23, 1954; that the lifeguards on duty, who
were agents of the defendant, knew that the deceased could not
swim; that the pool has deep water which is over the head of the
deceased; that the deceased died as a result of drowning; that
she suffered great pain and suffering; that the cost of her
funeral was $750; and that her parents suffered great pain,
anguish, and mental suffering as a result of her drowning.
On November 2, 1955, plaintiff filed an amendment to his
complaint alleging in the alternative that the defendant entered
into a contract with the deceased for her to swim in the pool;
that there was an implied contract that the pool was a safe place
in which to swim; and that the defendant breached its covenant by
failing to take proper care of the deceased.
On November 7, 1955, the defendant filed an answer to
plaintiff's amended complaint, denying each and every material
On November 25, 1955, plaintiff filed a second amendment to his
complaint which merely sets out in detail the specific acts and
omissions which plaintiff alleges amount to negligence on the
part of the defendant and its agents.
In the meantime, the Court had requested the parties to file
trial briefs, and not having received said briefs the Court on
November 28, 1955, entered an order requiring the parties to
submit trial briefs.
On the same date, November 28, defendant filed its answer to
plaintiff's second amendment to the complaint, and denied the
material allegations thereof. The case was set for trial on
December 8, 1955, and prior to that date the Court received and
considered the briefs of the parties, and also made an
independent search of the applicable authorities. After
considering the briefs and other authorities the Court decided
that a pretrial hearing should be had before the case proceeded
to trial on its merits. Such a hearing was held on December 8,
1955, and the Court and counsel discussed the legal questions
involved in the action.
On December 10, 1955, plaintiff filed his third amendment to
the complaint, and alleged in substance that the swimming pool
constituted an attractive nuisance for which the defendant would
be liable. On December 14, 1955, defendant filed its answer to
plaintiff's third amendment.
On December 19, 1955, the defendant filed a motion for summary
judgment, attaching thereto a certified copy of an ordinance of
the City of Hope, Arkansas, and an affidavit of Charles
Reynerson, treasurer of the City of Hope.
On December 19, 1955, the Court entered an order allowing
plaintiff until January 31, 1956, to serve and to file a response
and supporting documents in opposition to defendant's motion for
No response has been filed by the plaintiff, and the motion for
summary judgment is now ready for final disposition. The question
presented here is whether there is any genuine issue as to any
material fact, and if not, whether the defendant is entitled to
a judgment as a matter of law. Rule 56, Fed.Rules Civ.Proc. ...