Allen v. Salina Broadcasting, Inc., 1

• Decision Date: 05 February 1982
• Docket Number: R,No. 1,No. 12256,1,12256
• Citation: 630 S.W.2d 225
• Parties: 3 Ed. Law Rep. 779 John W. ALLEN, Plaintiff-Appellant, v. SALINA BROADCASTING, INC., et al., Defendant, and Dallas County School Districtespondent.
• Court: Missouri Court of Appeals

Page 225

630 S.W.2d 225

3 Ed. Law Rep. 779

John W. ALLEN, Plaintiff-Appellant, v. SALINA BROADCASTING, INC., et al., Defendant, and Dallas County School District No. 1, Respondent.

No. 12256.

Missouri Court of Appeals, Southern District, Division Two.

Feb. 5, 1982.

Motion for Rehearing Overruled and to Transfer to Supreme

Court Denied Feb. 26,

1982.

Application to Transfer Denied April 13, 1982.

Richard D. Bender, Sherwood, Honecker & Bender, Springfield, for plaintiff-appellant.

Andrew K. Bennett, Freeman, Fredrick, Bennett & Rogers, P. C., Springfield, for respondent.

BILLINGS, Judge.

Defendant School District No. 1, Dallas County, was granted summary judgment on Count II of plaintiff John W. Allen's four-count amended petition in which he sought damages against five defendants for alleged defamatory statements.

Initially, we are confronted with the School District's motion to dismiss this appeal as premature because the summary judgment did not dispose of all parties and all issues. We find no merit in this contention. The trial court's docket sheet clearly shows the order granting summary judgment for the School District was made final for purpose of appeal. An order granting summary judgment may properly be designated by the trial court as final for purposes of appeal pursuant to Rule 81.06, V.A.M.R.; Kaufman v. Bormaster, 599 S.W.2d 35 (Mo.App.1980). Dismissal of a claim against one party in a multiple-party suit may also be designated final for purposes of appeal under Rule 81.06. Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974). School District's motion to dismiss the appeal is denied.

Plaintiff's suit charges four counts of defamation based upon separate publication in 1975, by three of the defendants, including the School District, of a report written by a fourth defendant claiming the plaintiff was "starving his cattle to death." The fifth defendant, Wayne Lemmons, is an employee of the School District. In an original proceeding in prohibition, our Supreme Court ruled that plaintiff be allowed to amend his petition to aver sufficient facts to prosecute his claim against the School District within the proprietary function exception to the doctrine of sovereign immunity. State ex rel. Allen v. Barker, 581 S.W.2d 818 (Mo. banc 1979).

The single issue presented in this appeal is whether or not the School District is shielded by sovereign immunity. Resolution of this question turns on whether or not plaintiff has alleged sufficient facts to bring this suit within the exception to the general doctrine of immunity. More narrowly, do the facts alleged show the School District's operation of a radio station to be a proprietary function, rather than a governmental function?

"A school district is a 'public corporation' forming an integral part of the State and constituting that instrumentality of the State utilized by the State in discharging its constitutionally invoked governmental function of imparting knowledge to the States youth." (citations omitted). Kansas City v. School District of Kansas City, 356 Mo. 364, 201 S.W.2d 930, 933 (1947). Because a school district is an arm of the state, the Missouri Supreme Court, in Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975) refused to "enter the maze of the 'governmental-proprietary' dichotomy" in this area. The Court reaffirmed this position in Beiser v. Parkway School District, 589 S.W.2d 277 (Mo. banc 1979).

The prevailing view was that the school district existed " '... for one single and noble purpose, viz., to educate the children of the district.' " Kansas City v. School District of Kansas City, supra, at 933. However, as State ex rel. Allen v. Barker, supra, rules, those functions of a school district that do not serve this "noble purpose" are proprietary functions and are not given immunity.

"Charitably it has been said that the line between the functions is not clearly defined. The underlying test is whether the particular act performed is for the common good of all or whether the act can be performed adequately only by government and is governmental in character." Id. at 824. This distinction between governmental and proprietary functions is most often applied to municipalities (See Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977) ) and much of the case law has developed in this area.

The Missouri Supreme Court, quoting from a New Jersey Supreme Court decision, related the following concerning this distinction.

"The distinction is illusory; whatever local government is authorized to do constitutes a function of government, and when a municipality acts pursuant to granted authority it acts as government and not as a private entrepreneur. The distinction has proved useful to restrain the ancient concept of municipal tort immunity, not because of any logic in the distinction, but rather because sound policy dictated that governmental immunity should not envelop the many activities which government today pursues to meet the needs of the citizens." State ex rel. Askew v. Kopp, 330 S.W.2d 882, 890 (Mo.1960).

Discussing this determination, McQuillin on municipal corporations offers the following:

"The true test does not rest upon the determination as to whether or not the municipality is reaping a monetary gain, nor whether such activity has been held to be of such a public necessity that expenditure of funds in connection therewith was for a public purpose.

It has been said that the liability or nonliability of a municipality for its torts does not depend upon the nature of the tort, the relation existing between the city and the person injured, or whether the city was engaged in the management of tangible property, but depends upon the capacity, in which the city was acting at the time. It is not the character or name of the agent who executes the duty of removing the cause of discomfort and ill health to the public which fixes the character of the duty performed, but it is the act itself which determines whether it is governmental or ministerial.

What are governmental powers and duties, and what are corporate duties, is not subject to precise definition further than to say this: The powers and duties of municipal corporations are of two-fold character; the one public as regards the state at large, insofar as they are its agents in government; the other private insofar as they provide the local...