Casper v. Longview School Dist. No. 122

• Decision Date: 18 September 1940
• Docket Number: 28005.
• Citation: 105 P.2d 503,5 Wn.2d 403
• Parties: CASPER v. LONGVIEW SCHOOL DIST. NO 122.
• Court: Washington Supreme Court

105 P.2d 503

5 Wn.2d 403

CASPER v. LONGVIEW SCHOOL DIST. NO 122.

No. 28005.

Supreme Court of Washington, En Banc.

September 18, 1940

Action by John Casper, individually and as administrator of the estate of Theodore Casper, deceased, against Longview School District No. 122, a municipal corporation, of Cowlitz County Washington, to recover damages for death of plaintiff's son resulting from maintenance and operation of manual training equipment. From an adverse judgment, defendant appeals.

Reversed and remanded with directions.

Appeal from Superior Court, Cowlitz County; J. E Stone, judge.

Ronald Moore, of Kelso, for appellant.

W. H Sibbald, of Kelso, for respondent.

BLAKE Chief Justice.

This is an action to recover damages on account of the death of plaintiff's son which resulted from the maintenance and operation of manual training equipment in the Longview high school. The cause was tried to the court without a jury and resulted in findings of negligence on the part of the district which was held to be the proximate cause of the death of plaintiff's son. From judgment entered on the findings, defendant appeals.

It will be unnecessary to review the evidence or recite the facts relating to the accident. The evidence is sufficient to support the court's findings with respect to negligence and proximate cause of death. Appellant, nevertheless contends that the court erred in overruling its objection to the introduction of any evidence in support of the cause of action set up in the complaint. This objection is predicated on Rem.Rev.Stat. § 4706, which provides: 'No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents, officers or employees, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.'

Accepting the statute at its face value, there can be no doubt that the appellant's objection to the introduction of any evidence was well taken.

Respondent contends, however, that this court has not in all instances involving noncontractual liability of school districts accepted the statute at its face value. The statute was enacted in 1917 shortly after this court, construing Rem. & Bal.Ann.Codes & Stats. § 951, had held that school districts were liable for negligence in the maintenance of playground apparatus. Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 P. 1004, 1006, Ann.Cas.1917D 792. It is elementary, of course, that, in the absence of statute imposing liability, a school district is not liable as for negligence in the performance of its governmental functions. Dillon, Municipal Corporations, 5th Ed., p. 2888. And the rule of nonliability at common law applies to the maintenance of playgrounds, athletic and manual training equipment. In the case just cited ( Howard v. Tacoma School District No. 10) it was observed: 'We are asked, 'How can it be said that the physical development of children is a function of government?' The answer seems obvious: Just for the same reason that it can be said that the mental development of children is a function of government. Both are intended to raise the standard of citizenship. The state is certainly as much interested in the physical standard of its citizens as in their mental standard.'

In this decision the court, in construing Rem. & Bal.Code, § 951, simply extended the construction placed upon the statute in the decision of Redfield v. School District No. 3 of Kittitas County, 48 Wash. 85, 92 P. 770, wherein the court held that a school district was no longer immune from liability for negligence in the operation and maintenance of a school building. To ascertain the legislative purpose in enacting Rem.Rev.Stat. § 4706, we must keep in mind the construction placed upon Rem. & Bal.Code, § 951, in the two cases just cited, because the latter section, as construed, completely abrogated the immunity from liability doctrine. It is quite apparent that in the enactment of Rem.Rev.Stat. § 4706, the legislature intended to revive that doctrine with respect to the operation and maintenance by school districts of playground apparatus and manual training equipment. And, with the exception of one case which we shall discuss later, the court has given the statute its full force and effect. In construing it (Rem.Rev.Stat. § 4706) the court has held that it does not apply to an action which had gone to judgment prior to its effective date, notwithstanding the pendency of an appeal by the school district at that time. Bruenn v. North Yakima School District No. 7, 101 Wash. 374, 172 P. 569; Kelley v. School District No. 71 of King County, 102 Wash. 343, 173 P. 333; Holt v. School District No. 71 of King County, 102 Wash. 442, 173 P. 335. Conversely, it has been held that a cause of action arising Before the effective date of the act was barred by a judgment in favor of defendant notwithstanding an appeal taken by plaintiff. Foley v. Pierce County School District No. 10, 102 Wash. 50, 172 P. 819.

In Bailey v. School District No. 49, King County, 108 Wash. 612, 185 P. 810, the act was upheld--barring an action brought to recover damages sustained by a child while using certain playground apparatus. A similar result was reached where a child was injured by a circular saw which was maintained and operated in the manual training department of a school. Swanson v. School District No. 15, Pierce County, 109 Wash. 652, 187 P. 386.

In the next case ( Stovall v. Toppenish School District No. 49, 110 Wash. 97, 188 P. 12, 9 A.L.R. 908), construing Rem.Rev.Stat. § 4706, the court said the effect of the statute was to exonerate school districts from liability only with respect to the maintenance and operation of athletic apparatus or appliances or manual training equipment used in connection with any park, playground, or field house. The school district was therefore held liable as for negligence in leaving on the school grounds a steel tank which had been removed from the school building and upon which a child was injured while at play.

In line with this holding is that in the case of Juntila v Everett School District No. 24, 178 Wash. 637, 35 P.2d 78, 79. It was there held that the statute did not bar recovery against the school district for injuries sustained by a boy when a tier of bleacher seats, in the athletic field, collapsed. In disposing of the contention that the action was barred by the statute, the court said: 'The respondent school district was not liable...