Bartell v. School Dist. No. 28, Lake County

• Decision Date: 17 May 1943
• Docket Number: 8395.
• Citation: 137 P.2d 422,114 Mont. 451
• Parties: BARTELL v. SCHOOL DIST. NO. 28, LAKE COUNTY.
• Court: Montana Supreme Court

137 P.2d 422

114 Mont. 451

BARTELL v. SCHOOL DIST. NO. 28, LAKE COUNTY.

No. 8395.

Supreme Court of Montana

May 17, 1943

Appeal from District Court, Fourth Judicial District, Lake County C. E. Comer, Judge.

Action by Edward F. Bartell, a minor, by his guardian ad litem, Ed F. Bartell, against School District No. 28, Lake County, for personal injuries suffered during shot putting. From a judgment for defendant, plaintiff appeals.

Affirmed.

F. N Hamman and Lloyd I. Wallace, both of Polson, for appellant.

R. H Wiedman, of Polson, for respondent.

JOHNSON Chief Justice.

Plaintiff appeals from a judgment rendered in favor of defendant school district after its general demurrer to his amended complaint had been sustained and plaintiff had refused to plead further. The question is, therefore, whether the complaint states facts sufficient to constitute a cause of action against the school district. Vance Bronson, the other defendant, the principal of the district's school at Round Butte, is not concerned in this appeal.

The complaint is for damages for negligence. It alleged in part that plaintiff was a pupil and defendant Bronson the principal of the school mentioned; that Bronson, within the scope of his employment as such and while coaching and instructing several older boys of the school in the field event of shot putting, directed plaintiff to stand near where the heavy iron shot would fall and to mark the place; that Bronson, without warning to plaintiff, cast the shot striking plaintiff on the head and inflicting serious injuries of a permanent nature.

Defendant contends that many of the essential allegations are stated by way of legal conclusions only and not of ultimate facts; but assuming without deciding that the pleading is by means of ultimate facts, we shall consider the question whether the complaint states a cause of action against the school district.

In accordance with the well established rule, it has been held by this court in Perkins v. Trask, 95 Mont. 1, 23 P.2d 982, that school districts are not in general liable for injuries caused by negligence of their officers, agents or employees unless liability is imposed by statute, even though the activity with which the negligence is connected is optional with the school district.

Plaintiff's contention is set forth as follows in his brief: "We do concede that the general rule is that a school district is not liable in tort, but this case falls within the list or line of exceptions. The rule is that a school district, town or city as well as a county, is not liable for tort when the tort is committed while acting in a governmental capacity. ***

The rule laid down in the case of Perkins v. Trask *** has no application and is not controlling in the case at bar, nor do the many citations mentioned therein throw any light on this case. The facts and conditions are materially different. In the Trask case there was inaction while performing a governmental function in the absence of specific statutory instruction. Here there is positive action, in fact an overt act, placing a child in a dangerous place while he was not a part of the athletic team, when by force of rule and authority he had to obey, failing to advise him of the accompanying danger, and failure to warn him when the professor threw the ball, and, we claim, in violation of a statute which requires a cautious lookout for the welfare of a child, and in the presence of statutes giving the school board power to levy taxes for athletic purposes. And no one can, with any degree of credence, say these acts as above listed are governmental functions.

If this boy had been a part of the athletic team and chose to perform the duties he did perform of his own volition or even by request and then was injured, we concede there would be no liability and, under those circumstances, the rule of the Trask case would apply."

While plaintiff states that there are various exceptions to the rule of non-liability, the exceptions upon which he relies here are shown by the distinction he draws between the circumstances of the Trask case and the instant one. The...