O'Dell v. School Dist. of Independence

• Decision Date: 10 March 1975
• Docket Number: No. 57474,57474
• Citation: 521 S.W.2d 403
• Parties: Harry E. O'DELL, Jr., a minor, by his parents and next friends, Harry E. O'DELL, Sr., and Joyce Floray, et al., Appellants, v. SCHOOL DISTRICT OF INDEPENDENCE, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 403

521 S.W.2d 403

Harry E. O'DELL, Jr., a minor, by his parents and next friends, Harry E. O'DELL, Sr., and Joyce Floray et al., Appellants, v. SCHOOL DISTRICT OF INDEPENDENCE, Missouri, Respondent.

No. 57474.

Supreme Court of Missouri, En Banc.

March 10, 1975.

Rehearing Denied April 14, 1975.

Albert J. Yonke, Yonke & Shackelford, Kansas City, for appellants.

Rufus Burrus, Independence, for respondent.

John C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for Amicus Curiae.

DONNELLY, Chief Justice.

This is an action for damages involving the governmental immunity rule.

Plaintiffs' petition against the School District of Independence, Missouri, alleges that on February 3, 1971, Harry O'Dell, Jr., while a student at William Chrisman Senior High School, and while participating in wrestling practice, was injured when a physical education coach applied an illegal wrestling hold on him.

Plaintiffs' petition was dismissed by the trial court and plaintiffs appealed.

In their brief, plaintiffs come directly to the point and 'assign as error the ruling of this court that the doctrine of governmental immunity from the consequences of negligence applies to school districts and other units of government, thereby depriving them and other injured persons of the basic right to recover damages for negligence from the state and its subdivisions.'

On September 10, 1973, in Watson v. Kansas City, 499 S.W.2d 515 (Mo. banc 1973), the doctrine of governmental immunity came under oblique scrutiny in this Court. In Watson, Judge Finch filed a concurring opinion in which he again expressed his belief 'that in an appropriate case we should reexamine the doctrine of governmental immunity.' On March 14, 1974, the instant case was recognized as an appropriate case for such reexamination and it was transferred from Division One of the Court to the Court en Banc on the Court's own motion. On July 22, 1974, Rennie et al. v. Belleview School District et al., 521 S.W.2d 423, was transferred from Division Two of this Court to the Court en Banc. Both cases were heard September 24, 1974, by the Court en Banc.

The two most recent frontal attacks in this Court on the doctrine of governmental immunity were made in Smith v. Consolidated School District No. 2, 408 S.W.2d 50 (Mo. banc 1966), and Payne v. County of Jackson, 484 S.W.2d 483 (Mo.1972). In Smith, this Court declined to abolish the doctrine, and said (l.c. 54):

'For more than a century the courts of Missouri have uniformly held generally that political subdivisions of the state are not subject to liability in suits for negligence. Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; State ex rel. Jordon v. Haynes, 72 Mo. 377; Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306; Lamar v. Bolivar Special Road District, Mo.Sup., 201 S.W. 890; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063; Cullor v. Jackson Township, Putnam County, Mo.Sup., 249 S.W.2d 393. School districts are political subdivisions of the state. Art. 10, § 15, Constitution of Missouri, V.A.M.S., § 70.210, RSMo 1959, V.A.M.S. As such, school districts have long been held immune from liability in tort for negligence. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Krueger v. Board of Education of City of St. Louis (Banc), 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086; Dick v. Board of Education of City of St. Louis, Mo.Sup., 238 S.W. 1073. Our holdings have been so uniform that nothing is to be gained by restating the reasons for and against the doctrine of sovereign immunity.'

In Payne, the Court relying primarily on Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393 (Mo.1952), Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963), and the Smith case, supra, declined to abolish the doctrine, and said (484 S.W.2d 483, 486):

'We are not unaware that the doctrine of sovereign immunity continues to be under bitter assault and violent attack by some writers and law review commentators. We also recognize that in some jurisdictions the immunity doctrine has been abrogated in whole or part by courts or legislatures. In 18 jurisdictions which have judicially undertaken to weaken or abolish such immunity a quick retreat was thereafter taken by several of the courts and in seven of these jurisdictions the legislatures enacted comprehensive legislation. 56 Iowa Law Review 930--993 (1971).

'Plaintiffs say the doctrine is 'illogical and unjust doctrine, universally deplored . . . an aged survivor of Legal History, born in antiquity and kept viable only by stare decisis and inertia' and that the trend since our decision in Cullor has been for the courts to take the lead in restricting or wholly abolishing the doctrine. We believe that instant plaintiffs overlook the reasons for the doctrine that were again spelled out in Cullor and Smith by this court. Plaintiffs' contentions also fail to consider that in the jurisdictions referred to a careful state by state analysis is necessary to determine the extent of abrogation, including: the governmental entitites affected; the nature and meaning of exceptions to liability, the impact of new law on prior statutes and decisions, the retroactive effect of new law; and, subsequent court decisions and legislative acts in such jurisdictions.

'As we observed in the Fette and Smith cases, the abolition of the doctrine of sovereign immunity opens up a Pandor's box of complex and possible chaotic problems that we, in the exercise of judicial restraint, believe the legislature to be better equipped to solve than the judiciary.'

It is generally agreed that the first diminution in stature of the doctrine of sovereign immunity came in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), in which the Court abolished sovereign immunity as to municipalities in Florida, declaring that '(T)o continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth Century upon an Eighteenth Century anachronism.' Other state courts proceeded to follow the leadership given by Florida. Most, if not all, are noted in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). Although our own research does not fully agree with the categorization of jurisdictions in Ayala, the jurisdictions listed therein purporting to follow the Hargrove case are generally noteworthy, in our opinion, for at least three reasons: (1) the zeal with which each strives to surpass the eloquence of its predecessors in damning the doctrine of sovereign immunity; (2) their unquestioning assumption that 'the historical roots of the governmental immunity doctrine are found in the English case of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (1778),' Ayala, supra, l.c. 879; and (3) their reasoning that 'the doctrine of governmental immunity--judicially imposed--may be judicially terminated.' Ayala, supra, l.c. 885.

We believe it would serve no useful or proper purpose for us to question the reasoning employed by the opinions cited in Ayala, supra. It is sufficient to say that the views they, and the Ayala opinion, express conflict with the public policy of Missouri, as articulated in our Constitution, in our statutory law, and in our judicial decisions.

The common law of England was adopted in Missouri by an act of the Third Territorial Assembly on January 19, 1816. The Act read, in part, as follows:

'1. The common law of England, which is of a general nature, and all statutes made by the British parliament in aid of or to supply the defects of the said common law, made prior to the fourth year of James that First, and of a general nature, and not local to that kingdom, which said common law and statutes are not contrary to the laws of this territory, and not repugnant to, nor inconsistent with the constitution and laws of the United States shall be the rule of decision in this territory, until altered or repealed by the legislature, any law, usage, or custom to the contrary notwithstanding, . . ..' (Emphasis supplied.)

In 1825, the italicized language, supra, was deleted by the legislature (RSMo 1825, p. 491), and the remainder has been carried forward to the present. It is now a part of § 1.010, RSMo 1969, V.A.M.S. 'When Missouri came into the Union of the states under its first Constitution, it brought with it the common law which it had adopted as a territory in 1816.' Elks Investment Co. v. Jones, 187 S.W. 71, 74 (Mo.1916). 'The statute by which we adopted the common law of England specifically includes only the common law in force prior to the fourth year of the reign of James the First, * * * which was the year 1607, * * *.' Osborne v. Purdome, 244 S.W.2d 1005, 1011 (Mo. banc 1951).

The first question presented is: what was the 'general nature' of the common law of England with reference to sovereign immunity prior to the year 1607? We are indebted to the Supreme Court of Wyoming, and its research reflected in Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, 810, 811 (1959) for the answer to the question. The members of the Court in Wyoming were inhibited by a statute similar in wording to the 1816 version of Missouri's § 1.010, supra. The Wyoming court noted the Hargrove case, supra, and said:

'We interpret these expressions as meaning the Florida court considered the doctrine of municipal immunity originated by virtue of pronouncement made in Russell v. The Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359. We believe that assumption is not justified because of what was said in the opinion in the Devon case, which was an action in which an individual sought recovery against the inhabitants of a county for injuries sustained because of alleged negligence of the county. In the major opinion at 2 T.R. 673, 100 Eng.Rep.R. 362 it was said:

"* * * there is no law or reason for...