Kersey v. Harbin

• Decision Date: 08 December 1975
• Docket Number: No. 9893,9893
• Citation: 531 S.W.2d 76
• Parties: Richard KERSEY and Delores Jean Kersey, Plaintiffs-Appellants, v. Samuel HARBIN et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 76

531 S.W.2d 76

Richard KERSEY and Delores Jean Kersey, Plaintiffs-Appellants, v. Samuel HARBIN et al., Defendants-Respondents.

No. 9893.

Missouri Court of Appeals, Springfield District.

Dec. 8, 1975.

Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for plaintiffs-appellants.

David E. Blanton, Blanton, Blanton, Rice & Sickal, Sikeston, for defendants-respondents.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

HOGAN, Judge.

Plaintiffs brought this action for the wrongful death of their minor son, Daniel Keith, a 13-year-old junior high school student. Defendant Samuel Harbin is Superintendent of Public Schools of Sikeston, Missouri; defendant W. L. Clayton is Principal of the Sikeston, Missouri Junior High School; defendants Holmes and Edwards are teachers and physical education instructors; defendant Mary Mather is the school nurse.

Taking the inductive allegations of the petition as true, plaintiffs' son was thrown to the floor by a classmate while both were participating in a physical education class. Defendant Edwards, the regular instructor did not appear for class, and defendant Holmes took over Edwards' class as well as his own. The injury occurred during a period of time when decedent's class was left without supervision.

Daniel received a head injury when he was thrown to the floor. He was seen by defendant Mather and was allowed to return to and participate further in the physical education class. Daniel thereafter became ill but was directed to remain at school until his father could be contacted. Having been notified of his son's injury, plaintiff Richard Kersey came to the school and took Daniel to the office of a local physician. Several hours later Daniel died as a result of the injuries he sustained at school.

The defendants filed separate but identical motions to dismiss the action pursuant to Rule 55.27. ¹ As far as the record indicates, no affidavits or counteraffidavits were filed, nor was any evidence heard upon the motions. Without assigning any grounds, the trial court sustained each motion. Plaintiffs have appealed.

Specifically, the plaintiffs charged defendants jointly with negligence in 14 enumerated particulars: 'A. In causing an eighth grade physical education class composed of 20 to 25 students and normally taught by a physical education instructor, to be taught by another physical education instructor who at the same time had the responsibility of teaching his own class of eight (sic) graders, composed of 20 to 25 pupils when said instructor was unable adequately to supervise both classes; B. In providing a teacher ratio in a physical education class of eighth graders to be one teacher per 45 pupils when the proper ratio is one teacher to 23 pupils; C. In requiring one teacher to teach at the same time two physical education classes of eighth grade male students, when two teachers were normally used for the instruction of said two classes; D. In leaving a physical education class of eighth grade male students to the responsibility of another teacher who already had a similar class, when one teacher was not equipped or able properly to supervise and teach both classes; E. In failing properly to supervise 45 male eighth grade students in two physical education classes, in that one class was left unattended and unsupervised in the gymnasium; F. In failing to supervise adequately two classes by causing one class to be placed in a locker room and another class placed in the gymnasium, unsupervised; G. In failing to supervise properly two classes of eighth grade male students, by keeping said two classes together and under direct supervision at all times; H. In failing to supervise two classes composed of eighth grade male students by leaving some of said students unattended when it was known that some of said students had a history of causing disturbances previously and by fighting, agitating and arousing their fellow students; I. In failing to maintain discipline among the students attending the Sikeston, Missouri Junior High School; J. In failing to supervise the students attending the Sikeston, Missouri Junior High School; K. In failing to provide a teacher or teachers for the physical education classes of the Sikeston, Missouri Junior High School; L. In failing to provide adequate medical treatment to Daniel Keith Kersey who had suffered severe head injuries; M. In allowing and directing Daniel Keith Kersey to resume his activities in an eighth grade physical education class after he had received severe head injuries; N. In failing to transport Daniel Keith Kersey to a physician or to a hospital when it was known that he had suffered severe head injuries and in requiring him to wait at said school until his father could be located and made to come to the school to pick up his said son and transport him to a hospital for medical aid.'

The allegations of each motion to dismiss were as follows: 1) 'the petition fails to state a cause of action upon which the request of the prayer could be sustained'; 2) 'as to this said defendant, the petition states conclusions and fails to state or allege facts'; 3) 'at all times referred to in the plaintiffs' petition, this defendant was in the performance of a governmental function and as such, was clothed with discretionary powers and would not be liable for any damages that the plaintiffs may have sustained'; 4) 'as this said defendant was performing governmental functions, he would not be liable to the plaintiffs for any alleged acts of (sic) omissions constituting nonfeasance'; 5) 'the relationship of loco parentis existed between him and the late Daniel Keith Kersey and he is, accordingly, not liable to the plaintiffs for an unintentional tort, as none was committed.'

On this appeal, the plaintiffs do not challenge the immunity of the school district, Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975); O'Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975), cert. denied, --- U.S. ---, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975), although on oral argument they professed to believe the doctrine of sovereign immunity will shortly be abolished in this jurisdiction. We decline to speculate. Otherwise, both plaintiffs and defendants have briefed and argued a number of abstract propositions, citing many cases from this and other jurisdictions which, they maintain, support their respective positions. We shall limit ourselves to a consideration of those issues necessary to a proper disposition of the 3 (Mo. banc 1975), cert. denied, _ _ U.S. 903--904, 290 S.W.2d 76, 82(16) (1956).

In our opinion, the direct and meritorious question presented is whether or not the plaintiffs' petition states a claim upon which relief can be granted. The first two paragraphs of the several motions to dismiss directly challenge the sufficiency of the plaintiffs' petition, and we address ourselves to that issue, forgoing for the moment any examination of the special defenses pleaded in paragraphs three, four and five of motions to dismiss.

A motion to dismiss for failure to state a claim upon which relief can be granted performs the same function as a general demurrer, Baysinger v. Hanser, 355 Mo. 1042, 1044, 199 S.W.2d 664, 645--646(1) (1947); Abbott v. Seamon, 229 S.W.2d 695, 698(1) (Mo.App.1950), and ordinarily a petition should be held good as against such a motion if the averments of the petition, accorded every reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742, 744(1) (Mo.1952); Ingalls v. Neufeld, 487 S.W.2d 52, 54(4) (Mo.App.1972). Generally, the pleader may not be cast merely because his cause of action is imperfectly or defectively stated, Downey v. United Weatherproofing, Inc., 363 Mo. 852, 855, 253 S.W.2d 976, 977--978(1, 2) (1953), and on several occasions our Supreme Court has held that a petition which specifies the act complained of with sufficient certainty to advise the defendant of the charge he is to meet and then avers that the act was negligently done by the defendant is a good pleading and is not fatally defective as stating a mere conclusion. Maybach v. Falstaff Brewing Corp.,359 Mo. 446, 455, 222 S.W.2d 87, 92 (1949); Zichler v. St. Louis Public Service Co., 332 Mo. 902, 912, 59 S.W.2d 654, 657(6) (1933). It may therefore be said that our courts tend to construe pleadings most liberally as against the contention that no cause of action is stated or the argument that the averments constitute mere conclusions of the pleader.

One significant exception to the rule that pleadings must be liberally construed arises in connection with those actions sometimes described as 'disfavored' causes of action. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1357 at 610--611 (1969). In such cases, courts are inclined to construe the complaint by stricter standards. Cases based on fraud or mistake are familiar examples, Rule 55.15, but in the federal courts, at least, a more strict standard of construction has been applied in cases where the defendants are or may be immune or privileged. See, e.g., Owen v. Kronheim, 113 U.S.App.D.C. 81, 304 F.2d 957 (1962); Ginsburg v. Black, 192 F.2d 823, 825--826(10) (7th Ir. 1951), cert. denied, 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342 (1952). In this connection, we have read and reread Smith v. Consolidated School Dist. No. 2, 408 S.W.2d 50 (Mo. banc 1966). In that case, an action for personal injury was brought by a minor against a school district, its superintendent and a physical education instrutor, based on the negligence of all three. Defendants' motions to dismiss were sustained. After argument and reargument, the Supreme Court affirmed the trial court's order sustaining the motions. Although the court nowhere mentions 'disfavored actions' our examination of the...