Antin v. Union High School Dist. No. 2 of Clatsop County

• Court: Oregon Supreme Court
• Writing for the Court: [130 Or. 463] RAND, J.
• Citation: Antin v. Union High School Dist. No. 2 of Clatsop County, 280 P. 664, 130 Or. 461 (Or. 1929)
• Decision Date: 24 September 1929
• Parties: ANTIN v. UNION HIGH SCHOOL DIST. NO. 2 OF CLATSOP COUNTY ET AL.

280 P. 664

130 Or. 461

ANTIN v. UNION HIGH SCHOOL DIST. NO. 2 OF CLATSOP COUNTY ET AL.

Supreme Court of Oregon

September 24, 1929

In Bank.

Appeal from Circuit Court, Clatsop County; C. H. McColloch, Judge.

Action by A. Antin, as administrator of the estate of Charles Elmer Antin, deceased, against Union High School District No. 2 of Clatsop County and others. Judgment for defendants, and plaintiff appeals. Affirmed.

G. C. Fulton, of Astoria (G. C. & A. C. Fulton, of Astoria, on the brief), for appellant.

Frank C. Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for respondent.

RAND, J.

Plaintiff's intestate, a pupil of Union high school district No. 2 of Clatsop County, sustained injuries causing his death from the explosion of the pneumatic water tank, which had been installed on the school premises about two months prior thereto and was being operated solely for the purpose of supplying water to the school. Plaintiff brought this action against the school district, and also against all of the directors of the district individually, to recover damages for decedent's death, which the complaint alleges was caused by the joint negligence of all of the defendants. The explosion occurred on a school day and during a recess, while decedent, then 19 years of age, was engaged, under the direction of one of the teachers of the school, with other pupils in work on the school premises. The particular negligence charged in the complaint is that the tank was one which could be operated only under a high pressure, and that it was negligently installed, maintained and operated by the defendants, without any safety device with which to control the pressure, or to render its operation safe, and that, because of the high pressure under which it was being operated, and the want of such device, it exploded and caused the death of decedent.

The learned trial court sustained general demurrers to the complaint as to all of the defendants, upon the ground that the installation, maintenance, and operation of the tank by the defendants, which was used exclusively for furnishing water for school purposes, were public or governmental acts for which the district, whether negligent or not, would not be liable, and that the directors of the district, for the same reason, are immune from personal liability, except for their own individual negligent acts and that there was no allegation in the complaint that any of the directors had been guilty of any personal negligence. The correctness of this ruling is the only question for review upon this appeal.

We must assume for the purposes of the demurrer that the district was negligent in installing and operating the tank on the school grounds, without any proper safety device to prevent it from exploding. The tank was on the school grounds, and it was being used by the district as a means of supplying water for school purposes. Decedent was a pupil of the school, and was lawfully there at the time he sustained the injuries which caused his death.

A school district is a civil division of the state. It is an agency of the state, created by law for the purpose of promoting education. It derives all of its powers from the statute, and discharges only such duties as are imposed upon it by statute, or which it assumes under the authority conferred by the statute. The statute requires it to provide a school building, and to operate and maintain the building for educational purposes; and it is as much its duty to furnish water for the use of the school as it is to furnish heat or light for such purpose. It has been generally held that, in the absence of statute, a school district is not liable for injuries caused by its own negligence, or by the negligence of its officers or agents, in the construction of a school building, or in failing to keep the building or premises in proper repair and condition, but that when, in the exercise of its corporate powers, a school district creates or permits a nuisance by misfeasance or nonfeasance, it is liable in damages to any person suffering special injury therefrom. 35 Cyc. 971; 43 C.J. p. 921.

Under our statute, sections 357, 358, Or. L., a school district may sue or be sued, and an action may be maintained against a school district, "for an injury to the rights of the plaintiff arising from some act or omission" of the district. Or. L. § 358. If this were a case of first impression, and there were no controlling decisions upon this question, we would be inclined to hold--at least, such is the opinion of the writer--that the Legislature intended by the enactment of these two sections to make a school district liable for the consequences of its own wrongful or negligent acts, although not liable for the misfeasance or nonfeasance of its officers or agents; and such was the effect of the holding in McCalla v. Multnomah County, 3 Or. 424 when the statute as then in force, now section 358, Oregon Laws, embraced not only incorporated towns, school districts and other public corporations of like character, but also counties. But this statute has been too often construed by this court, and held not to include within its purview an injury arising from some public or governmental act of a public corporation, to be now open to question in respect to the nonliability of a public corporation for an injury arising from the performance by it of a public or governmental act, Caspary v. City of Portland, 19 Or. 496, 24 P. 1036, 20 Am. St. Rep. 842; Esberg Cigar Co. v. City of Portland, 34 Or. 282, 55 P. 961, 963, 43 L. R. A. 435, 75 Am. St. Rep. 651; Wagner v. Portland, 40 Or. 389, 60 P. 985, 67 P. 300, 302; Pacific Paper Co. v. Portland, 68 Or. 120, 135 P. 871; Blake-McFall Co. v. Portland, 68 Or. 126, 135 P. 873; Wiest v. School Dist. No. 24, 68 Or. 474, 137 P. 749, 49 L. R. A. (N. S.) 1026; Ryder v. La Grande, 73 Or. 227, 144 P. 471; Coleman v. La Grande, 73 Or. 521, 144 P. 468; Humphry v. Portland, 79 Or. 430, 154 P. 897; Spencer v. School Dist. No. 1, 121 Or. 511, 254 P. 357.

Referring to these two sections of the statute, in Wagner v. Portland, supra, this court said: "But it only gives the action against the municipality when it is liable in its corporate capacity, as distinguished from its political or governmental capacity, as an arm of the state in the exercise of sovereignty." The construction thus given to the statute followed the construction given by previous decisions, and it has been followed in all subsequent decisions upon that question. These decisions recognize that a municipal corporation, such as a city or town, may be both a subordinate agency of the state, created to discharge duties of local government imposed upon it by statute, and a corporation, which may exercise private or proprietary functions, either for emolument or gain, or for the peculiar benefit of the people of the locality, and that, while it is so engaged in the exercise of its corporate or private functions, the municipality is answerable in damages for the negligence of its officers, agents, or employees, but that it is not answerable while engaged in the discharge of public duties imposed or assumed for the benefit of the state at large. While acting in the exercise of its private or proprietary functions, the officers and employees of the municipality act as agents of the municipality, and for their acts the municipality is answerable under the doctrine of respondeat superior; but, while acting in the performance of its governmental functions the municipality is not liable, either for its own or their negligent acts or omissions.

When a city undertakes to furnish water, manufacture gas, generate electricity, or operate street railways for emolument or gain, or for the peculiar benefit of its citizens, it is acting in its private or proprietary capacity, and is responsible for its own negligent acts or omissions. But when a municipality provides police, fire, or health protection, or education for its youth, such functions are public or governmental in their nature, and for its own negligent acts or wrongful omissions, or those of its agents and servants, it is not liable to suit by a private person. The law upon this question is so well settled by the decisions referred to that it is no longer open to question in this state. In promoting the education of pupils of school age within a school district, the district is exercising a public function as an agency of the state, and is performing a duty imposed upon the district nolens volens by statute. As said by Mr. Justice Bean, speaking for the court in Esberg Cigar Co. v. Portland, supra:

"* * * Accordingly it has been held that municipal corporations are not responsible for the negligence or wrongful acts of health officers or boards of health, * * * or for an injury caused by a negligent defect in a school building. Ham v. Mayor of New York, 70 N.Y. 459; Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332. * * * But when a special power or privilege is conferred upon or granted to a municipal corporation, to be exercised for its own advantage or emolument, and not as a mere governmental agency, it is liable to the same extent as an individual or a private corporation for negligence in managing or dealing with the property rights or franchises held by it under such grant."

It is clear from the authorities to which we have referred that where a municipal corporation is acting in its private or proprietary capacity, the municipality is responsible for the consequences of its own negligent acts or omissions, as well as for the negligent acts and omissions of its subordinates, officers, agents, and employees, under the doctrine of respondeat superior, and that the municipality is liable in such case for ...