Buck v. McLean

• Decision Date: 08 October 1959
• Docket Number: No. B-125,B-125
• Citation: 115 So.2d 764
• Parties: Terryss BUCK and L. G. Buck, her husband, Appellants, v. Curtis McLEAN, J. G. Bruce, and J. J. Nichols, Individually, and as members of and constituting the Control Committee of the 'Apalachicola Memorial Stadium,' Franklin County, Florida, a political subdivision of the State of Florida, the Board of Public Instruction of Franklin County, Florida, a public corporation, and City of Apalachicola, a municipal corporation, Appellees.
• Court: Florida District Court of Appeals

Page 764

115 So.2d 764

Terryss BUCK and L. G. Buck, her husband, Appellants, v. Curtis McLEAN, J. G. Bruce, and J. J. Nichols, Individually, and as members of and constituting the Control Committee of the 'Apalachicola Memorial Stadium,' Franklin County, Florida, a political subdivision of the State of Florida, the Board of Public Instruction of Franklin County, Florida, a public corporation, and City of Apalachicola, a municipal corporation, Appellees.

No. B-125.

District Court of Appeal of Florida, First District.

Oct. 8, 1959.

Rehearing Denied Nov. 3, 1959.

Caldwell, Parker, Foster, Madigan, Oven & Moriarty, Tallahassee, for appellants.

Shuler & Shuler, McLeod & McLeod, C. H. Bourke Floyd, Apalachicola, and James Messer, Jr., Tallahassee, for appellees.

WIGGINTON, Chief Judge.

Appellants husband and wife sued The Board of Public Instruction of Franklin County, Florida, and others, for injuries sustained by wife while a paying spectator at a high school baseball game. The contest was being played on an athletic field owned by the School Board and operated as a facility of the public school system of Franklin County. The complaint alleges that defendants negligently permitted a protective wire screen between the grandstand and playing field to deteriorate as a result of which a foul ball came through a hole in the screen striking plaintiff in the eye and causing serious damage. From a summary judgment entered in favor of all defendants plaintiffs have appealed.

By memorandum decision filed in support of the summary judgment, the trial court held that although the complaint states a cause of action against the School Board, the latter is immune from liability for tort and the action is therefore not maintainable.

The crucial question presented for decision is whether a county school board may be held liable in tort for injuries sustained by a paying spectator as a result of negligence in the maintenance of an athletic stadium owned by the Board and constituting a part of the public school plant which was being used at the time of injury for a high school interscholastic baseball game.

The immunity of the State from suit is absolute and unqualified and the constitutional provision securing it is not to be so construed as to place the State within reach of the court's process. ¹ County boards of public instruction are agencies of the State and as such are clother with the same degree of immunity from suit as is the State. ² They are the creatures of the Constitution, constituted as quasi corporations for the purpose of exercising under legislative authority such part of the governmental powers of the State as the law confides in them. In short, county school boards are part of the machinery of government operating at the local level as an agency of the State in the performance of public functions. The character of their functions, and the extent and duration of their powers rests exclusively in the legislative discretion. Their powers may be enlarged, diminished, modified or revoked, and their acts set aside or confirmed, at the pleasure of the legislature.

In recognition of the doctrine of sovereign immunity from liability of every kind our Constitution permits suit to be brought against the State only as to such liabilities for which provision is made by general law. ³

Appellants contend that the Florida Legislature has made provision by general law for bringing suits against county school boards by the enactment of F.S. Section 230.22, F.S.A., which permits county boards of public instruction to sue as well as to exercise other powers enumerated in the statute. This question had been answered adversely to appellant's contention by our Supreme Court in the Bragg case. ⁴ when it held that the mere fact a board of public instruction is created as a body corporate with power to sue and be sued does not affect its immunity from tort. In addition, our Supreme Court has expressed grave doubt as to whether an act of the legislature could validly authorize the bringing of actions ex delicto against county school boards without amending the Constitution. ⁵ This ruling is predicated upon the requirement of the Constitution that school funds be disbursed solely for the support and maintenance of public free shools, and the provision prohibiting the enactment of any law authorizing the diversion of school funds to any other than school purposes. ⁶

Appellants argue with considerable force that modern judicial thinking has rejected the doctrine of sovereign immunity, and the pronounced trend is to permit the maintenance of tort actions against units and agencies of government. In support of this proposition they point to the Suwannee County Hospital Corporation decision ⁷ by our Supreme Court which they interpret as holding that a paying patient in a county hospital is entitled to the same protection and redress for wrong against a county as if the hospital were privately owned and operated. It is urged that this decision is authority for the proposition that a county, even though a political subdivision of the state, is no longer immune from liability for torts committed by its agents or employees in the performance of their duties. A careful review of the cited decision does not lead up to the conclusion reached by appellants. We first point out that the defendant in the Suwannee case was a hospital district created by special act of the legislature, and not the county itself. The district was constituted a corporation charged with the duty of constructing, maintaining and operating a hospital for the treatment of paying patients, as well as the indigent. Our Supreme Court held that the proporation was engaged in a proprietary function exactly to the same extent as privately owned hospitals. Implicit in the court's opinion is the conclusion that defendant neither possessed any of the attributes nor discharged any of the functions of sovereignty. In its decision the Court commented upon its former decision in the Bragg case, wherein it held that boards of public instruction were engaged in governmental functions and not subject to actions in tory. In distinguishing the rule in Bragg from that in the case then under consideration, the opinion was careful to state that the court saw no fundamental similarity between a hospital and a school system. It further commented that institutions such as Suwannee County Hospital Corporation are not a part of any statewide system maintained at public expense, so all who become afflicted, may, regardless of their individual worth, have the advantages of professional nursing, medical attention, and modern scientific apparatuses without cost to them. Had the contrary been true, the opinion indicates that the corporation would have been considered a state agency, discharging a governmental purpose, and therefore immune from tort liability just as are counties and county boards of public instructions.

Our interpretation of the Suwannee County Hospital decision is not affected by the later decision of our Supreme Court in the Bourgeois case. ⁸ In Bourgeois action in tort was brought against Dade County for damages resulting from negligence in the care and treatment of plaintiff's decedent while receiving treatment in the emergency ward of the county hospital. Our Supreme Court held that the proof of negligence was sufficient to...