Consolidated School Dist. No. 1 of Tulsa County v. Wright

• Decision Date: 13 December 1927
• Docket Number: 18379.
• Citation: 261 P. 953,128 Okla. 193,1927 OK 474
• Parties: CONSOLIDATED SCHOOL DIST. NO. 1 OF TULSA COUNTY et al. v. WRIGHT.
• Court: Oklahoma Supreme Court

261 P. 953

128 Okla. 193, 1927 OK 474

CONSOLIDATED SCHOOL DIST. NO. 1 OF TULSA COUNTY et al. v. WRIGHT.

No. 18379.

Supreme Court of Oklahoma

December 13, 1927

Syllabus by the Court.

Furnishing free motor transportation to public school children under section 10465, C. O. S. 1921, by a district board of a consolidated school district, is a public governmental function, and neither said school district, nor said board nor the individual members thereof are liable in damage for injuries to a pupil caused by the negligence of its officers agents, or employees in the control or operation of its motor truck for such purpose, where they have acted in good faith and without malice.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Tulsa County; Luther James, Judge.

Action by Rilda Wright, by her father and next friend, T. L. Wright against Consolidated School District No. 1 of Tulsa County and others, for injuries alleged to have been sustained in a school bus accident while being driven to school. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Randolph, Haver & Shirk, of Tulsa, for plaintiffs in error.

Harry E. Stege and Moss, Searcy, Montgomery & Young, all of Tulsa, for defendant in error.

The Attorney General, amicus curiæ.

BENNETT P. C.

On November 4, 1925, Rilda Wright, plaintiff, aged 14, a resident of and a pupil in consolidated school district No. 1, in Tulsa county, Oklahoma, was permanently and seriously injured in an accident to a school bus. The bus was being driven by one H. L. Mayfield, the regular driver, who was also a teacher in the school. Parties will be referred to as they were designated in the trial court.

The school was in the village of Turley. As the bus, loaded with school children, was being driven about 8 o'clock in the morning toward the village, the two right wheels went off the pavement, which was wet from mist and rain. This was at a point near a culvert, and the road was slightly down grade. The driver succeeded in getting the front wheel back on the pavement, but when the rear wheel came back on the pavement the bus, on account of the heavy load, the grade, and wet pavement, skidded around, and the rear end struck the abutment of the culvert and overturned, and plaintiff was injured.

Brady Taylor, L. J. Garnett, and William Robinson comprised the board of said school district. Mayfield was not made a party. The negligence alleged is that Mayfield was an inexperienced and incompetent driver; that the defendants, the school district and the individual members thereof, were negligent, in that they knew or should have known that the said driver was incompetent and inexperienced, and that he had had a number of accidents, and that he was an unsuitable and improper person to have charge of the transportation of said pupils, by reason whereof the plaintiff was injured.

There was a general demurrer filed by each and all of the defendants, and later motions to direct verdict, and the same were overruled, with exceptions. There was a verdict of a jury and a judgment thereon for $50,000 against all the defendants, and for the review thereof this appeal is lodged here. There are 11 assignments of error, but in the argument three questions are presented:

(1) Are school districts in Oklahoma liable in tort?

(2) Are the members of the school board liable in tort as individuals for an act done by them as a board?

(3) Erroneous instructions.

This case has been skillfully tried, and there are exceptional briefs filed on the part of each party. The clear-cut and candid announcement of law applicable to this case in the respective briefs is of the greatest aid to the court in determining the law questions involved. For example, with respect to a proper answer to questions Nos. 1 and 2 (which points we now hold to be finally determinative of this case), the plaintiff, on page 11 of the brief, uses the following language:

"In the first place, we believe that the rule is this: If a municipal corporation is in the exercise of a purely governmental function, then neither the corporation nor its governing officers are liable in tort for injury resulting from the exercise of such strict and purely governmental function. On the other hand, it is equally true that, if the tort is committed in the exercise of a corporate or proprietary function, as distinguished from a purely governmental function, then such municipal corporation is liable in tort for such injury."

Further:

"Our next proposition is that, where the power exercised is intended for the private advantage and benefit of the corporation or its inhabitants, or for the benefit of a limited number of its inhabitants, then such municipal corporation is subject to the same liability as an individual would be, exercising the same powers for purposes essentially private. In the instant case the power exercised was the furnishing of motor transportation, which was not mandatory on the defendants, to a limited number of the inhabitants of the defendant district for the private advantage of certain localities in the district, the inhabitants thereof, and for the private advantage of the district itself. Consequently the defendant district was in the exercise, not of a purely governmental function, necessary to the administration of the laws of the state, but, on the other hand, was in the exercise of a corporate or proprietary function, and therefore liable for this injury."

Accepting at full face, therefore, this statement of the plaintiff, if the furnishing to the plaintiff of transportation to the common free school by the school board was an exercise of a purely governmental function, then the answer to these two pivotal questions must be in the negative. On the other hand, if the same was in the exercise of a corporate or proprietary function, or if the same was exercised and intended for private advantage, and for the benefit of the corporation or its inhabitants, or for a limited number of such inhabitants, then such exercise will not be a governmental function, but will be essentially private, and liability will follow.

1. Is the furnishing of free transportation by the school boards of the state to those pupils within their several consolidated school districts, who reside two or more miles from school, an exercise of governmental function? The Constitution of Oklahoma (article 1, § 5) provides:

"Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control. * * *"

Article 13, § 1, provides:

"The Legislature shall establish and maintain a system of free public schools wherein all the children of the state may be educated."

Article 11, § 2, provides, among other things:

"All proceeds of the sale of public lands that have heretofore been or may be hereafter given by the United States for the use and benefit of the common schools of this state, all such per centum as may be granted by the United States on the sales of public lands, the sum of five million dollars appropriated to the state for the use and benefit of the common schools in lieu of sections sixteen and thirty-six, and other lands of the Indian Territory, the proceeds of all property that shall fall to the state by escheat, the proceeds of all gifts or donations to the state * * * shall constitute the permanent school fund, the income from which shall be used for the maintenance of the common schools in the state. The principal shall be deemed a trust fund held by the state, and shall forever remain inviolate. It may be increased, but shall never be diminished. The state shall reimburse said permanent school fund for all losses thereof which may in any manner occur, and no portion of said fund shall be diverted for any other use or purpose."

Section 3 of said article provides:

"The interest and income of the permanent school fund, the net income from the leasing of public lands, * * * together with any revenues derived from taxes authorized to be levied for such purposes, and any other sums which may be added thereto by law, shall be used and applied each year for the benefit of the common schools of the state, and shall be, for this purpose, apportioned among and between all the several common school districts of the state in proportion to the school population of the several districts, and no part of the fund shall ever be diverted from this purpose, or used for any other purpose than the support and maintenance of common schools for the equal benefit of all the people of the state."

Article 13, § 4, provides:

"The Legislature shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the state who are sound in mind and body, between the ages of eight and sixteen years, for at least three months in each year."

Our highest court, speaking through Justice Williams, in the case of Oklahoma Ry. Co. v. St. Joseph's School et al., 33 Okl. 755, 127 P. 1087, announces the doctrine, which must be perfectly obvious from reading the foregoing excerpts from the Constitution, that:

"The free public school system, which the Legislature of this state was directed to establish by section 1 of article 13 of the Constitution, is a matter of state concern and not a municipal affair"-citing Olson, County Clerk, v. Logan County Bank, 29 Okl. 391, 118 P. 572; Board of Education of the City of Ardmore v. State, 26 Okl. 366, 109 P. 563.

It will be seen that in chapter 86, C. O. S. 1921, entitled "Schools," there is formulated under the above constitutional provisions a comprehensive system of public schools for the state...