Krueger v. Board of Education

• Decision Date: 30 July 1925
• Docket Number: No. 25008.,25008.
• Citation: 274 S.W. 811
• Parties: KRUEGER v. BOARD OF EDUCATION OF CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

274 S.W. 811

KRUEGER v. BOARD OF EDUCATION OF CITY OF ST. LOUIS.

No. 25008.

Supreme Court of Missouri, Division No. 1.

July 30, 1925.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Gertrude Krueger against the Board of Education of the City of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

Lich & Miller, of St. Louis, for appellant.

Robert Burkham, of St. Louis, for respondent.

LINDSAY, C.

Plaintiff's suit is for damages for personal injuries sustained by her while employed by the defendant in the lunchroom and cafeteria maintained and operated by the defendant in the Cleveland high school, in the city of St. Louis. The negligence charged against defendant, its agents and servants, was the setting in motion of a food-chopping machine while plaintiff was engaged in cleaning it. A general demurrer to the petition was sustained, and judgment for defendant followed. There is no issue as to the merely formal sufficiency of the petition; but the sole issue is whether defendant, as a quasi corporation, is liable at all for negligence in the operation of the lunchroom. The plaintiff concedes that defendant, as a quasi corporation, while engaged in the exercise of the quasi corporate and governmental functions imposed upon it by law, is not liable for its negligence or the negligent acts of its employees. So much is well settled. Cochran v. Wilson, 287 Mo. 210, 229 S. W. 1050; Dick v. Board of Education (Mo. Sup.) 233 S. W. 1073, 21 A. L. R. 1327.

Plaintiff's case is founded upon the claim that the operation of a lunchroom in the school, as a thing merely authorized or permitted by law, was in the nature of a special, voluntary, and self-imposed duty; and, not being" a duty enjoined upon defendant by the law, such operation of it was not the exercise of a governmental function, and for that reason the rule of nonliability for negligence announced in the Dick, Cochran, and many other cases is not applicable.

The determination of the case, therefore, depends upon whether there is a controlling distinction to be made between the performance of an enjoined duty, and the exercise of a power expressly given by the law, whose exercise is not mandatory but rests in the discretion of such quasi corporation. The statute under which defendant acted (Laws 1921, pp. 615, 616) is as follows:

"The board of directors, or board of education, shall have the power, in its discretion, to install in the school buildings under its care the necessary apparatus and appliances, and to purchase the necessary food to enable it to provide and sell lunches to children attending the schools; provided, however, that such lunches shall not be so sold for a less price than the cost of the food, exclusive of the cost of the necessary apparatus and appliances and exclusive of costs necessary and incidental to the purchase of the fund and the preparing and serving of the lunches."

The foregoing is a general law. The controversy here turns upon the answer to a single question. Does the fact that the defendant was authorized to operate a lunchroom, but was not compelled to do so, make its operation other than a governmental function, or, putting it another way, does the element of discretion so distinguish that performance from the duties enjoined upon the defendant as to take it out of the general rule in respect of liability for negligence in performing the duty?

Upon this question counsel rely upon the holding in Hannon v. St. Louis County, 62 Mo. 313. In that case the county entered into a contract for the laying of certain water pipes to the county insane asylum, and the negligence charged was that of the engineer and contractor. It was held that there was liability. In that case it was said (loc. cit. 317) the test was: "That the county could not have been compelled to enter on the work for whose performance it contracted." It was further said that it was "immaterial whether the thing done, from which civil liability ensues, originates in the free act of the county in the first place, or whether it is legislative permission and its subsequent acceptance by the county, which gives origin to the act whose negligent performance produces the injury complained of." It was further pointed out that the Legislature had previously "recognized the county lunatic asylum as an existing fact, and provided that the county court might commit the insane of that county to the county institution," and also before the contract was made had, by legislative act, "recited the fact that the asylum was built at the expense of the county, and appropriated $15,000 annually in support of `the humane objects contemplated by its establishment,' thus giving the whole matter legislative sanction and recognition." That case was referred to in Swineford v. Franklin County, 73 Mo. 279. The grounds upon which it was decided were pointed out, and the facts of the Swineford Case distinguished from those in the Hannon Case.

The holding in the Hannon Case upon the distinguishing feature of that case was neither distinctly disapproved nor approved. But in the much latter case of Moxley v. Pike County, 276 Mo. 449, 208 S. W. 246, both of said cases were referred to, and it was said that the general doctrine of the Hannon Case had been disapproved in Swineford's Case. Moxley's Case was founded upon injuries received through the removal of a bridge and leaving the place unguarded upon a toll road controlled by the county under legislative authority or permission as successor to a private corporation. The results reached upon the force of the element of discretion in the act of the defendant are pertinent here. It was said (loc. cit. 453 ):

"When, for convenience in the administration of its laws, the state, through the Legislature, calls to its aid those territorial organizations sometimes called, with more or less accuracy, quasi corporations, such as counties, townships, and school districts, the question has frequently arisen whether these agencies share, with the state itself, immunity from common-law liability for the negligence of their officers in the exercise of their territorial duties. The answer, from the courts of this state, has generally been a negative one."

Further, pertinent to the issue here, it was said (loc. cit. 454 ):

"In the organization of counties the legislative purpose is to divide the state into convenient districts for the purpose of administering the laws under the eye of legal agencies created for that purpose and convenient of access to the people. Optional powers are frequently given as required by local conditions, and, perhaps, legal prejudices; but these are of the very essence of uniformity—that real uniformity which is exhibited in results rather than in methods of achieving them."

Further on, and rejecting the doctrine of the Hannon Case upon the element of discretion entering into the act, it was said (loc. cit. 456 ):

"Hannon v. County of St. Louis, 62 Mo. 313, is relied on by appellant to sustain the theory that the exercise of the control and management vested in the county court by the Act of 1899, being discretionary and not compulsory, its exercise placed the county in the position and saddled it with the personal liability of a private or municipal corporation with respect to the duties growing out of the position that administrative tribunal had chosen to occupy. This discretion to determine whether this road should become a part of the general system of highways in the state does not differ even in degree, from the discretion vested in the court in many other respects concerning the establishment or improvement and maintenance of roads and bridges. As for the Hannon Case, its general doctrine, even if originally applicable to the question now before us, was abandoned in Swineford v. Franklin County, 73 Mo. 279, and the doctrine of the Reardon Case, supra applied."

In Cochran v....