Opinion
No. 8385.
Submitted October 6, 1943.
Decided November 3, 1943.
Schools and School Districts — Personal Injuries Suffered by Spectator in School Gymnasium at Basket Ball Game — Defendants acting in Governmental Capacity — Non-liability of Defendants in Tort Action — Pleading — Complaint — Demurrer — Admissions. Pleading — Complaint — Well pleaded Allegations admitted by Defendant's Demurrer. 1. Well pleaded allegations of the complaint stand admitted by defendant's demurrer thereto. Schools and School Districts — Personal Injury suffered by Spectator at Basket Ball Game in School Gymnasium — District and Trustees Acting in Governmental Capacity — Non-liability of Defendants. 2. Held, under the ruling in Perkins v. Trask, 95 Mont. 1, 23 P.2d 982, that neither a school district nor its board of trustees is liable in damages for injuries sustained by one attending a basket ball game held in a school gymnasium, who in endeavoring to gain access to a gallery provided for spectators used a stairway one of the steps of which gave way causing the injuries complained of, since defendants were acting in a governmental and not in a proprietary capacity, the game being played having been merely a part of the physical education of the school; and that therefore the trial court properly sustained a general demurrer to the complaint and dismissed the action. Same — Fact that Plaintiff paid Admission Fee Immaterial — Reason for Rule. 3. The fact that defendant school district charged an admission fee to the game at which plaintiff was injured did not remove the activity from the field of governmental functions, it making little, if any, difference whether such admission fee went into the school fund or whether the expense of the game was paid from general taxation; in either event a basket ball game advances the purpose of physical education — a governmental function of the school district and its trustees.
(MR. JUSTICE ERICKSON dissenting.)
Injury to one other than pupil in connection with school property, see note in 40 A.L.R. 1091.
Appeal from District Court, Roosevelt County; Vernon Hoven, Judge.
Messrs. Lester H. Loble, Hugh R. Adair and Henry Loble, for Appellant, submitted an original and a reply brief; Mr. Lester H. Loble and Mr. Albert H. Angstman, of counsel, argued the cause orally.
Mr. Erick Moum and Mr. S.G. Skulason, for Respondents School District and Howard Helmar, School Trustee, submitted a brief.
Mr. Frank M. Catlin, for School Trustees C.A. Swanson, Fred Fear, C.L. Smith and Varner Nelson, submitted a brief and argued the cause orally.
We contend that a school district is liable in Montana, in damages for injuries caused by the negligence of its officers, agents or employees. We are aware of decisions holding that a school district is not liable for such damages, but believe that such a rule of law has no ground in reason, and finds its inception in the historical concept that "The King can do no wrong". This concept arose in the days of absolute monarchy, and the courts have shown considerable reluctance to go behind it. In Montana, the supreme court, in our opinion, has rejected the doctrine in its entirety.
The same rule of non-liability for school districts applied also to cities and counties, at one time in the history of the law in the United States. However, as time went by, the courts saw the fallacy of that position, and recently many courts, particularly in Montana, have done away with city and county non-liability. In a long line of cases this court has been pointing out the liability of cities and counties, distinguishing between ministerial acts and governmental acts. (See Campbell v. City of Helena, 92 Mont. 366, 16 P.2d 1; Griffith v. City of Butte, 72 Mont. 552, 234 P. 829; Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579; State ex rel. Brooks v. Cook, 84 Mont. 478, 276 P. 958; Brennan v. City of Kalispell, 105 Mont. 547, 74 P.2d 6; McCloskey v. City of Butte, 78 Mont. 180, 253 P. 267; Sweeney v. City of Butte, 15 Mont. 274, 39 P. 286; Leonard v. City of Butte, 25 Mont. 410, 65 P. 425; Safransky v. City of Helena, 98 Mont. 456, 39 P.2d 644; State ex rel. Kern v. Arnold, 100 Mont. 346, 49 P.2d 946; Jacoby v. Chouteau County, 112 P.2d 1068.)
We are not unmindful of the case of Perkins v. Trask, 95 Mont. 1, 23 P.2d 982, and if that authority stood alone, the plaintiff would not have instituted this action. We felt that Johnson v. City of Billings, supra and Jacoby v. Chouteau County, supra, point to a different rule, a rule more consistent with liberality of thought and justice. The last two cases mentioned have gone a long way toward breaking down the rule of sovereign immunity from suit.
This trend of the Montana courts has culminated in the case of Jacoby v. Chouteau County, supra. In that case, the county of Chouteau operated and maintained a ferry across the Missouri River, near the town of Carter. The plaintiff, desiring to cross the river on the ferry, went to the platform provided for the accommodation of prospective passengers, and while he was on the platform the tower collapsed and fell, injuring him. The court held the county liable to Mr. Jacoby, and stated therein: "We adhere to the rule announced in the Johnson case (above cited) to the general effect that a county, in the performance of proprietary, as distinguished from governmental, functions, is liable for damages due to its negligence." The court then held that the operation of a ferry was proprietary in character. In testing whether or not the operation of a ferry was a proprietary function, the court said: "That the legislature regarded the operation of a ferry as constituting a proprietary, rather than a governmental, function is apparent from the fact that under our statute Section 4480, Revised Codes, the operation of ferries may be leased to individuals or corporations. Governmental powers may not be thus delegated." To apply the above test to the present controversy, one has only to look to paragraph 7, of Section 1015, Revised Codes, wherein is found the authority for trustees of school districts to lease gymnasiums. That paragraph states: "7. To repair and insure school houses and to rent, lease and let to such persons or entities as the board may deem proper, the grade school halls, gymnasium and buildings and part thereof for such time and rental as the board may designate. All rentals shall be paid to the county treasurer for the credit of the school district." Therefore, adopting the criterion laid down in Jacoby v. Chouteau County, we can readily see that if a gymnasium can be leased, its operation is not purely governmental.
A further point to be considered here is that in this instance the defendants were operating this gymnasium for profit. As the gymnasium may be leased, and as defendants were operating it for a profit, it seems clear that in this instance the school district was acting in a proprietary rather than a governmental capacity. This leasing provision can again be found in paragraph 12, of section 1262.83, Revised Codes, wherein it refers specifically to trustees of every county high school or of every school district maintaining a district high school.
The present controversy is just about on all fours with the Jacoby case. In that case a ferry was constructed and maintained by defendant Chouteau County. In this case a gymnasium, with stairs therein, was constructed and maintained by School District No. 9. In the Jacoby case the ferry collapsed and injured plaintiff; in this case, a stair collapsed and injured plaintiff. The two complaints are almost identical in their material allegations. If a county is liable, as it was held liable in the Jacoby case, then manifestly a school district should be doubly liable.
To now consider the question of whether the trustees are liable in Montana for damages caused by the negligence of the district, its officers, agents or employes: Plaintiff contends, on this point, that if a cause of action is alleged against the school district, so is a cause of action alleged against the trustees. The reason for this is that the complaint alleges that the defendants constructed and maintained the stair or step in question, and maintained it for the use of the public, in a dangerous and unsafe condition, and negligently permitted the public to use it, and in particular, this plaintiff. It is to be noted that the complaint alleges that the defendants did this themselves. There is no distinction made between the actions of the school district, as such, and the actions of defendant trustees in their individual capacities. Plaintiff is quite sure that, according to the rules of pleading in this state, they have properly alleged knowledge, and they have properly alleged negligence on the part of the defendants. This being so, then if a cause of action in negligence for tort is alleged against defendant school district, then it is as well alleged properly against the defendant trustees. The allegations in the complaint that defendants, including these trustees, improperly constructed and maintained a step or stair, in a dangerous and unsafe condition, and then negligently permitted the same to remain in a dangerous and unsafe condition, state a cause of action against these defendants. By thus stating, a sufficient issue to go to the jury is framed.
Plaintiff seeks damages for injuries alleged to have been suffered by her as a result of an accident which occurred in the school gymnasium at Poplar, Montana. The defendants appeared by general demurrers which were sustained. Plaintiff was granted time in which to file an amended complaint. Having failed to plead further, plaintiff's default was entered and judgment of dismissal followed. This appeal is from that judgment.
The sole question presented is — Does the complaint state facts sufficient to constitute a cause of action against the school district or against the other defendants as trustees or [1] against them as individuals or against any of them? All of the allegations of the complaint, which are well pleaded, stand admitted. We therefore have these admitted facts:
That the defendant district is one of the duly constituted school districts of Roosevelt county, Montana. The other defendants are the duly elected, qualified, and acting trustees of that district.
The building in which the accident occurred is a school gymnasium. It was constructed and is maintained by this school district and is upon school grounds.
At the time alleged in the complaint there was a basket ball game or contest between the neighboring school teams of Brockton and Poplar. The general public in that vicinity were advised of the time and place of this game through advertisements. Plaintiff attended that contest. She paid admission.
Within the gymnasium is a floor space suitable for playing the game of basket ball and other games. Within the gymnasium and above the space provided for playing basket ball is a gallery for the accommodation of spectators. Leading to that gallery is a stairway. As the plaintiff approached the gallery by way of this stairway one of the stairs collapsed or gave way and she received the injuries complained of. She alleges the construction was faulty and that the stairway was not properly maintained.
So far as material, these are the essential admitted facts.
It must be conceded that the allegations of negligence contained in the complaint are sufficient to constitute a cause of action if the school district or its board of trustees, either as such or individually, are liable in damages for negligence.
This court has heretofore passed upon this precise question in [2] the case of Perkins v. Trask, 95 Mont. 1, 23 P.2d 982, 983, and there used the following language:
"The general rule, sustained by the overwhelming weight of authority, is that school districts are not liable in damages for injuries caused by the negligence of their officers, agents, or employees unless the liability is imposed by statute. The courts are not generally in accord as to the reason for such non-liability. Some base it upon one reason, and some upon another. The general rule is stated in 24 R.C.L., p. 604, as follows: `The courts very generally hold that school districts are not liable in damages for injuries caused by the negligence of their officers, agents or employees, nor for any torts whatsoever, unless such liability is imposed by statute, either in express terms, as is the case in some jurisdictions, or by implication, as where the district is given authority to levy taxes to meet such claims. But of course this general rule of law is limited to the district itself, and does not extend to independent agencies doing work for the district on school property. Even the school board itself cannot render the district liable in tort, for when it commits a wrong or tort, it does not in that respect represent the district. Various reasons are assigned why a school district should not be liable in tort. Some authorities place it on the ground that the relation of master and servant does not exist; others take the ground that the law provides no funds to meet such claims. Still other authorities hold that school districts in performing the duties required of them, exercise merely a public function and agency for the public good, for which they receive no private or corporate benefit. Many authorities do not base their holding on any single ground, but rely on two or more of them at the same time.'"
A great number of citations are given in support of that pronouncement. These citations will be found in 95 Mont. at page 6, 23 P.2d at page 983. We find no reason for encumbering this record by a reiteration of them.
Counsel for plaintiff concede that the foregoing is the general rule but contend that this court, as well as other courts, have modified the rule in that a distinction has been drawn between a governmental instrumentality such as a county, city or school district when acting in a governmental capacity as distinguished from a proprietary capacity; and that, in the instant case, the school district and its officers were acting in the latter capacity; that is, in a proprietary as distinguished from a governmental capacity. In support of that contention counsel cite a number of adjudicated cases, among which are Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579; Witter v. Phillips County, 111 Mont. 352, 109 P.2d 56; and Jacoby v. Chouteau County, 112 Mont. 70, 112 P.2d 1068.
In none of these cases, or in any of the others to which the court's attention has been called, is there any modification of the rule that no liability attaches where the instrumentality such as a county, city, or a school district is acting solely in a governmental capacity. A careful analysis of the allegations of the complaint here compels the conclusion that the defendants were acting in this instance in that capacity — that is, in a governmental capacity.
A public school system is provided for in our Constitution (section 1, Article XI). The trustees of a school district may issue bonds for the purpose of constructing a gymnasium (Chapter 147, Laws of 1927, sec. 1224.1, Rev. Codes of 1935).
The evolution of our common school system is most interesting and that system has contributed no little to the development and stability of this nation. We have come to regard education — not as a development of a part of the faculties, but of all of them — the intellectual, the moral, as well as the physical. ( Mt. Herman Boys' School v. Gill, 145 Mass. 139, 146, 13 N.E. 354, 357.) In order to make effective our conclusions in that respect we have authorized the proper officers of a school district to expend our money in the construction of a gymnasium. A part of that physical training consists in the playing of games — basket ball among others. Because some are better able to coordinate the action of the different members of the body, they are more adept at playing games than are others; but with basket ball, as in all other games, practice makes perfect.
It is a matter of common knowledge that, in these schools, teams are selected to play against another team or teams of the same school; and that out of all of these are selected those who have acquired the greatest proficiency, and these compose the team which represents the school in contests with teams from other schools in the same general vicinity. In striving to make the first team there is great rivalry. A spirit of emulation is developed — all of which results in a more complete development of the physical powers. Undoubtedly, one of the elements which stimulate the contestants is that they will be afforded an opportunity of exhibiting their skill in games against their fellows of the same school or against teams of a different school. This, we think, is true, not alone as it pertains to physical sports, but the same may be said of debating teams, or of band concerts, or of exhibitions of the art department of a school. The fact that a band concert is held, or an exhibition of the work of those in the art department of the school had, brings better results in each of these departments. Therefore, we conclude that the basket ball game in question was merely a part of the program of physical education of the school; and, consequently, the defendants were exercising governmental functions in connection therewith.
Counsel for plaintiff emphasize the fact that an admission fee [3] was charged and assert that because such charge was made, the activity is removed from the field of governmental functions. With that we cannot agree. Little if any difference does it make whether the admission fee thus collected went into the school fund, or whether the expense of conducting this game of basket ball was paid from general taxation. The result is the same. It advances the purpose of physical education. That is a part of the governmental functions of the school district and of its trustees. (See Hughes v. Monroe County, 147 N.Y. 49, 41 N.E. 407, 39 L.R.A. 33.)
We reaffirm the rule announced in the case of Perkins v. Trask, supra.
Neither are the members of the board individually liable; this for the reasons set forth in the Perkins case.
Therefore, the trial court was right in sustaining the demurrers and in rendering judgment for the defendants. That judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON and MORRIS concur.
I dissent. As is indicated in the quotation from Perkins v. Trask, 95 Mont. 1, 23 P.2d 982, found in the majority opinion, the reason for the rule exempting school districts from tort liability is not generally agreed upon by the authorities. The rule arose, of course, from the old idea that the king could do no wrong, and suit would not lie against the sovereign. The courts of this land have never agreed on any single basis why, in the absence of statute, recovery against the school district cannot be had by reason of its tort. One state (California) has entirely discarded the old rule. (See, also, Kelly v. Board of Education, 191 App. Div. 251, 180 N.Y. Supp. 796.) Most of the states, in attempting to decrease the severity of the rule, have adopted the governmental-proprietary test. This test is an arbitrary one, but the general trend of the decisions is to declare more and more functions proprietary rather than governmental so as to allow recovery. It is now generally agreed that neither logic nor justice supports the general rule which in this case denies recovery to the person injured where she goes for entertainment to a basket ball game sponsored by a school district, while on the other hand for exactly the same injury under the same conditions she could recover if she had gone to a theatre and had been there injured. For a general discussion of the governmental-proprietary test as applied to municipal corporations in the light of recent decisions, see the article in 22 Virginia Law Review, 910, and also the article in 54 Harvard Law Review, 437.
This court has in its recent decisions followed the trend of the majority of the courts of this country by applying the governmental-proprietary test liberally so as to permit recovery. The gist of the majority's opinion in this case is that the activity here in question was so closely connected with the historically recognized governmental function of the school district that it partook of the same nature. It seems to me that in the Jacoby case cited in the majority opinion, ( Jacoby v. Chouteau County, 112 Mont. 70, 112 P.2d 1068), and certainly in the Johnson v. City of Billings case, 101 Mont. 462, 54 P.2d 579, the activity out of which the tort arose was as closely identified with the governmental function, if not more so, than the holding of the public contest which we have in this case. I cannot reconcile the decision in this case with the decisions of those two cases, particularly the more recent one of Jacoby v. Chouteau County, supra.
Rehearing denied November 26, 1943.