Bang v. Independent School District No. 27, St. Louis County

• Decision Date: 17 May 1929
• Docket Number: 27,173
• Citation: 225 N.W. 449,177 Minn. 454
• Parties: EDYTHE A. BANG. v. INDEPENDENT SCHOOL DISTRICT NO. 27, ST. LOUIS COUNTY
• Court: Minnesota Supreme Court

225 N.W. 449

177 Minn. 454

EDYTHE A. BANG. v. INDEPENDENT SCHOOL DISTRICT NO. 27, ST. LOUIS COUNTY

No. 27,173

Supreme Court of Minnesota

May 17, 1929

Plaintiff appealed from a judgment of the district court for St. Louis county, Kenny, J. Affirmed.

SYLLABUS

Defendant district was negligent but did not maintain a nuisance.

1. The evidence is sufficient to sustain a finding that the defendant school district was negligent in exposing the plaintiff, a teacher in its schools, to tuberculosis. It is not sufficient to sustain a finding that it maintained a nuisance upon the school premises.

When school district exercises governmental as distinguished from proprietary functions.

2. A school district is a quasi public corporation; and in maintaining a school building, conducting a school and supervising the teaching force it exercises governmental as distinguished from proprietary functions.

Unless imposed by statute there is no liability for district's negligence in exercise of governmental functions.

3. For the negligence of a school district in the exercise of governmental functions there is no remedy unless liability is imposed by statute.

Statute cited does not apply to exercise of governmental functions.

4. G.S 1923 (1 Mason, 1927) § 3098, making school districts liable "for an injury to the rights of the plaintiff arising from some act or omission of such board," does not apply to the exercise of governmental functions, following Bank v. Brainerd School Dist. 49 Minn. 106, 51 N.W. 814; Allen v. Independent School Dist. No. 17, 173 Minn. 5, 216 N.W. 533; and Mokovich v. Independent School Dist. No. 22, 177 Minn. 446, 225 N.W. 292.

Schools and School Districts, 35 Cyc. p. 832, n. 81; p. 971 n. 80; p. 972 n. 82, 87; p. 1061 n. 24.

See note in 9 A.L.R. 911; 14 A.L.R. 1392; 31 A.L.R. 1328; 24 A.L.R. 1070; 56 A.L.R. 164; 24 R.C.L. 605; 3 R.C.L. Supp. 1377; 4 R.C.L. Supp. 1548.

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

T. S. Silliman and Abbott, MacPherran, Dancer, Gibert & Doan, for respondent.

OPINION

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 1925-1926 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 clear 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 Tel. Co. 144 Minn. 56, 174 N.W. 434. The evidece 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. City of 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 Dist. No. 22, 177 Minn. 446, 225 N.W. 292; Allen v. Independent School Dist. No. 17, 173 Minn. 5, 216 N.W. 533; Bank v. Brainerd School Dist. 49 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 Dist. No. 22, 177 Minn. 446, 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 Dist. No. 17, 173 Minn. 5, 216 N.W. 533 (pupil on school premises negligently run over by school bus; no liability); Bank v. Brainerd School Dist. 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. City of Boston, 122 Mass. 344, 23 Am. R. 332 (child injured by falling over defective banister on stairway in school building; no liability); Bd. of Ed. v. McHenry, 106 Ohio St. 357, 140 N.E. 169 (negligence of dentist in employ of school board; no liability); Krueger v. Bd. of Ed. 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086 (negligence in operation of lunch room; no liability); Harris v. Salem School Dist. 72 N.H. 424, 57 A. 332 (improper means of transportation of pupils to school; no liability); Cons. School Dist. No. 1 v. Wright, 128 Okl. 193, 261 P. 953, 56 A.L.R. 152 (negligence in operation of motor truck in transportation of pupils; no liability); Anderson v. Bd. of Ed. 49 N.D. 181, 190 N.W. 807 (negligence in maintaining upon school playgrounds swings and chutes; no liability); Daniels v. Bd. of Ed. 191 Mich. 339, 158 N.W. 23 (defectively constructed school building; pupil injured; no liability); Ernst v. City of West Covington, 116 Ky. 850, 76 S.W. 1089, 63 L.R.A. 652, 105, A.S.R. 241, 3 Ann. Cas. 882 (pupil injured by falling from wall in school grounds negligently left in dangerous condition; no liability); Ford v. School Dist. 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. Bd. of Ed. 99 W.Va. 466, 129 S.E. 486 (pupil injured; no liability); Weddle v. Bd. of School Commrs. 94 Md. 334, 51 A. 289 (negligent condition of playgrounds; on liability); Lane v. Dist. 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. City of St. Paul, 51 Minn 466, 53 N.W. 763, 18 L.R.A. 151 (negligence in maintaining city hall; no liability for injury to employe); Bojko v. City of 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. City of 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. City of 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. City of Ottawa, 228 Ill. 134, 81 N.E. 823, 11 L.R.A.(N.S.) 990 (negligence of employes in conducting a hospital; no liability); Evans v. City of 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. City of Casper, 35 Wyo. 371, 249 P. 562 (negligence in operation of fire truck; no liability); Jones v. City of Phoenix, 29 Ariz. 181, 239 P. 1030 (negligence in collection of garbage; no liability); Young v. City of Lexington, 212 Ky. 502, 279 S.W. 957 (negligence in operation of fire truck; no liability); Mocha v. City of 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...