Bang v. Independent School Dist. No. 27

• Decision Date: 17 May 1929
• Docket Number: No. 27173.,27173.
• Citation: 177 Minn. 454,225 N.W. 449
• Parties: BANG v. INDEPENDENT SCHOOL DIST. NO. 27 OF ST. LOUIS COUNTY.
• Court: Minnesota Supreme Court

225 N.W. 449

177 Minn. 454

BANG v. INDEPENDENT SCHOOL DIST. NO. 27 OF ST. LOUIS COUNTY.

No. 27173.

Supreme Court of Minnesota.

May 17, 1929.

Appeal from District Court, St. Louis County; E. J. Kenny, Judge.

Action by Edythe A. Bang against Independent School District No. 27 of St. Louis County. Judgment for defendant, and plaintiff appeals. Affirmed.

L. M. Bang, of Ely, and Lewis, Hunt & Palmer, of Duluth, for appellant.

T. S. Silliman, of Hibbing, and Abbott, MacPherran, Dancer, Gilbert & Doan, of Duluth, for respondent.

DIBELL, J.

Action by the plaintiff to recover of the defendant school district damages sustained from becoming infected with tuberculosis through the negligence of the defendant while she was employed as a school teacher. The court directed a verdict for the defendant, and the plaintiff appeals from the judgment.

1. The plaintiff was a teacher in the Maple Hill school of the defendant district. She commenced on October 14, 1925, and continued until November 25, 1925, when she secured another position. On April 24, 1926, she learned that she was tubercular. She continued teaching until June 4, 1926, and shortly afterwards entered Nopeming Sanatorium. Her predecessor in the school at Maple Hill taught in the 1925-26 school year until October 13, 1925, when, because of a tubercular condition, she was required to discontinue. She died of tuberculosis on April 19, 1926. The school district did not clean or disinfect the building or the papers and books and apparatus including a pitch pipe which had been used by her, and they were used by the plaintiff. She used cloths which had been used in cleansing and dusting before she came.

There may be liability for negligently exposing one to tuberculosis. Hansman v. Western Union Telegraph Co., 144 Minn. 56, 174 N. W. 434. The evidence was such as to justify a jury in finding that the district was negligent. G. S. 1923 (1 Mason, 1927) § 5384, provides that a teacher afflicted with tuberculosis shall not remain about a school building without a certificate from the board of health that she is not a source of danger to others. The school district officers had notice that plaintiff's predecessor was tubercular, required her to cease teaching because she was, and did not clean or fumigate the schoolroom or appliances before they put the plaintiff in charge. It seems not to be questioned seriously that a jury might find that the plaintiff became infected at the Maple Hill school.

The plaintiff makes something of G. S. 1923 (1 Mason, 1927) § 5385, requiring the renovation and disinfecting of apartments or premises which have been vacated because of the removal therefrom of one sick with tuberculosis. A reading of the statute indicates its application to houses or apartments or dwellings and does not permit the inclusion of a schoolhouse. It is of no consequence here.

The plaintiff makes a claim that a nuisance was maintained. There is nothing in the evidence from which we are able to see more than negligence. See G. S. 1923 (2 Mason, 1927) §§ 9580, 10241. At the most, the school district was lacking in care when it put the plaintiff in charge of the school, after her predecessor had been relieved because of her tubercular condition, and failed to exercise precautions in cleaning and disinfecting the schoolroom and appliances used in connection with it. As said in Bojko v. Minneapolis, 154 Minn. 167, 191 N. W. 399, the liability of a municipality cannot be changed by couching the language descriptive of the failure of duty in one form rather than another. It was just negligence.

2. A school district is a quasi public corporation and a governmental agency in the furnishing of educational facilities. Its functions are governmental and not proprietary. Mokovich v. Independent School District, 177 Minn. ___, 225 N. W. 292; Allen v. Independent School District, 173 Minn. 5, 216 N. W. 533; Bank v. Brainerd School District, 19 Minn. 106, 51 N. W. 814. Our holdings are in harmony with those in other states, some of which are noted in the next paragraph.

3. A school district in the exercise of its governmental functions is not liable for negligence unless liability is imposed by statute. Mokovich v. Independent School District, 177 Minn. ___, 225 N. W. 292 (negligent use of unslaked lime to mark lines on football field; eyes of plaintiff, a player in defendant's team, injured thereby; no liability); Allen v. Independent School District, 173 Minn. 5, 216 N. W. 533 (pupil on school premises negligently run over by school bus; no liability); Bank v. Brainerd School District, 49 Minn. 106, 51 N. W. 814 (school boy fell and broke leg while at play on school grounds; district negligent in permitting two stumps to be on grounds; no liability).

The authorities in other states are in accord. Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332 (child injured by falling over defective banister on stairway in school building; no liability); Board of Education v. McHenry, 106 Ohio St. 357, 140 N. E. 169 (negligence of dentist in employ of school board; no liability); Krueger v. Board of Education, 310 Mo. 239, 274 S. W. 811, 40 A. L. R. 1086 (negligence in operation of lunchroom; no liability); Harris v. School District, 72 N. H. 424, 57 A. 332 (improper means of transportation of pupils to school; no liability); Consolidated School Dist. v. Wright, 128 Okl. 193, 261 P. 953, 56 A. L. R. 152 (negligence in operation of motortruck in transportation of pupils; no liability); Anderson v. Board of Education, 49 N. D. 181, 190 N. W. 807 (negligence in maintaining upon school playgrounds swings and chutes; no liability); Daniels v. Board of Education, 191 Mich. 339, 158 N. W. 23 (defectively constructed school building; pupil injured; no liability); Ernst v. West Covington, 116 Ky. 850, 76 S. W. 1089, 63 L. R. A. 652, 105 Am. St. Rep. 241, 3 Ann. Cas. 882 (pupil injured by falling from wall in school grounds negligently left in dangerous condition; no liability); Ford v. School District, 121 Pa. 543, 15 A. 812, 1 L. R. A. 607 (pupil burned through negligence of janitor in using petroleum in starting fire; no liability); Krutili v. Board of Education, 99 W. Va. 466, 129 S. E. 486 (pupil injured; no liability); Weddle v. Board of School Commissioners, 94 Md. 334, 51 A. 289 (negligent condition of playgrounds; no liability); Lane v. District Township, 58 Iowa, 462, 12 N. W. 478 (pupil injured through negligence of district in permitting lightning rods to be out of repair; no liability).

The rule of nonliability applies to governmental functions of municipalities. Snider v. St. Paul, 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151 (negligence in maintaining city hall; no liability for injury to employé); Bojko v. Minneapolis, 154 Minn. 167, 191 N. W. 399 (failure to light street; no liability); Emmons v. City of Virginia, 152 Minn. 295, 188 N. W. 561, 29 A. L. R. 860 (negligent maintenance of a slide in a public park; no liability); Howard v. Stillwater, 171 Minn. 391, 214 N. W. 656 (maintenance of fire department; no liability); Harris v. District of Columbia, 256 U. S. 650, 41 S. Ct. 610, 65 L. Ed. 1146, 16 A. L. R. 1471 (cleaning streets for protection of public health and comfort; no liability for injury to child); Howard v. Philadelphia, 250 Pa. 184, 95 A. 388, L. R. A. 1916B, 917 (negligent vaccination by physician employed by board of health; no liability); Tollefson v. Ottawa, 228 Ill. 134, 81 N. E. 823, 11 L. R. A. (N. S.) 990 (negligence of employés in conducting a hospital; no liability); Evans v. Kankakee, 231 Ill. 223, 83 N. E. 223, 13 L. R. A. (N. S.) 1190 (negligence of board of health in detaining in calaboose one afflicted with smallpox whereby others working or residing near contracted disease; no liability); White v. Casper, 35 Wyo. 371, 249 P. 562 (negligence in operation of fire truck; no liability); Jones v. Phœnix, 29 Ariz. 181, 239 P. 1030 (negligence in collection of garbage; no liability); Young v. Lexington, 212 Ky. 502, 279 S. W. 957 (negligence in operation of fire truck; no liability); Mocha v. Cedar Rapids, 204 Iowa, 51, 214 N. W. 587 (negligence in conduct of bathing beach; no liability); Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N. E. 164, 27 A. L. R. 1497 (plaintiff struck by police patrol wagon; city not liable).

In Ackeret v. City of Minneapolis, 129 Minn. 190, 151 N. W. 976, L. R. A. 1915D, 1111, Ann. Cas. 1916E, 897, it was held that negligence in maintaining a driveway through a public park was actionable. The same was held in Nelson v. Duluth, 172 Minn. 76, 214 N. W. 774. Liability was put upon the ground that the driveway was in the nature of a street the duty to maintain which was cast upon the municipality. The Ackeret Case gathers the prior ones. There has been no departure from the rule of nonliability there stated.

The text-books and compilations are in general accord both as to school districts and municipalities exercising governmental and not proprietary or mere corporate functions. 43 C. J. 920 et seq.; 4 Dillon, Mun. Corp. (5th Ed.) § 1656, § 1658 et seq.; 2 Shearman & Redfield, Neg. (6th Ed.) § 267; 28 Cyc. 1257 et seq.; 19 R. C. L. p. 1109, § 391 et seq., p. 1124, § 402; 56 A. L. R. 164; Krueger v. Board of Education of St. Louis, 310 Mo. 239, 274 S. W. 811; 40 A. L. R. 1086; Maxwell v. Miami, 87 Fla. 107, 100 So. 147, 33 A. L. R. 682; Herman v. Bd. of Education of Union School Dist., 234 N. Y. 196, 137 N. E. 24, 24 A. L. R. 1070; Dick v. Bd. of Education of St. Louis (Mo. Sup.) 238 S. W. 1073, 21 A. L. R. 1328; Gold v. City of Baltimore, 137 Md. 335, 112 A. 588, 14 A. L. R. 1392; Stovall v. Toppenish School Dist. No. 49, 110 Wash. 97, 188 P. 12, 9 A. L. R. 911; Wiest v. School Dist. No. 24, 68 Or. 474, 137 P. 749, 49 L. R. A. (N. S.) 1026; First Decennial Digest, Schools, § 89; First Decennial Digest, Mun. Corp. § 852; 4 Dunnell, Minn. Dig. (2d Ed.) § 6808 et seq.

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