Medsker v. Etchison
| Citation | 199 N.E. 429,101 Ind.App. 369 |
| Decision Date | 28 January 1936 |
| Docket Number | No. 15108.,15108. |
| Parties | MEDSKER et al. v. ETCHISON. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Tipton Circuit Court; Glen J. Gifford, Judge.
Action by Donald R. Etchison, by his next friend, Joseph Etchison, against Frank O. Medsker and others. From a judgment for the plaintiff, the defendants appeal.
Reversed, with instructions.
Pence, O'Neill & Diven, of Anderson, and Cleon W. Mount, of Tipton, for appellants.
Dee R. Jones, of Alexandria, and Vermillion & Neff, of Anderson, for appellee.
This was an action by a minor, through his next friend, for damages for personal injuries alleged to have been sustained by the minor in a fall from a slide on the playground of a school in Alexandria, Ind. The members of the school board individually, the superintendent of schools, and an athletic supervisor are the appellants.
The complaint alleged that these appellants were guilty of negligence in the construction and maintenance of this slide. There was a trial by jury, which returned a verdict for the appellee, upon which a judgment was subsequently rendered. The overruling of the motion for new trial is assigned as error here, along with error in refusing to strike out parts of the complaint. The grounds of the motion for new trial were that the verdict of the jury is not sustained by sufficient evidence and that it was contrary to law and alleged error in giving three instructions.
The evidence discloses that this six year old child was using the slide, had gone down it several times before on this particularday, and that the slide sloped slightly to the west. The only evidence that the child actually fell from the slide proper is that of another five or six year old girl who was standing some 175 feet away from the slide, and who did not actually see the boy fall off, but testified that she saw him start down the slide and later saw him in the air in the act of falling.
[1] The only evidence that the slide sloped at all was given by one James Kirby, a mail carrier, who testified that he passed this schoolhouse several times a day and noticed the slide in this sloping condition, and, although he had one or two children of his own in this school, he made no report that the slide sloped to any of the school officials. However, upon this evidence there was sufficient from which the jury could draw the inference (believing this five or six year old girl and the mail carrier) that this sloping slide was the cause of the child's injury, although all the other testimony was to the effect that the child fell off of the platform in an attempt to go down one of the supports of the slide.
[2] Generally speaking, school officers acting within the scope of their duty are only responsible individually for the injuries resulting from corrupt motives and not from mistake of law or judgment.
[3][4][5] Here the school board in the exercise of its judgment caused this slide to be erected. Exercising its judgment, it accepted the report of the superintendent of the schools to the effect that the slide had been properly installed. There is no charge that his judgment or that of the board was influenced by improper motives, or that it was not their best judgment. The board's judgment may have been good or it may have been bad. It has the same right to err in judgment as any other body, and in the absence of corruption one should not be questioned anymore than the other.
The fact remains that the board did exercise its discretion and judgment. That may not have been the judgment of any other three men, but in the absence of a showing that there was an abuse of that discretion or of fraud, their judgment is supreme. Their action cannot be changed, modified, or controlled by juries or courts. Under such circumstances the judgment of no one or of the courts can be substituted for the judgment of the body designated by law to be intrusted with that duty.
Appellee relies exclusively upon the case of Adams v. Schneider et al. (1919) 71 Ind. App. 249, 124 N.E. 718, to sustain the action of the trial court. However, conceding this case to be a true expression of the law in Indiana (a question upon which we express no opinion), it is easily distinguishable from the case at bar. In the Adams Case the school board called in the clerk of the board and constituted him their special agent to make arrangements for a field day, where an admission fee was to be charged, and ordered him to have seats constructed. He, as the agent of the official board, hired an independent contractor to erect these seats. This was done, but neither the clerk nor any one else inspected the seats to see whether or not they were properly erected, and the court there held that it was a question for the jury whether or not the clerk and the board should be liable under the circumstances-the plaintiff having paid an admission fee and being subsequently injured by the falling of the seats. In that case the board's alleged neglect to cause an inspection or their alleged failure to inspect the work was held to be a question for the jury.
But such is not the situation in the case at bar. Here the installation of the slide was inspected by the superintendent and he found that it was properly installed. His judgment may have been bad, but nevertheless it was judgment.
In the Adams Case the court quotes from Clarke and Skiles on Agency, which probably was applicable to the facts in that case, but there Fisher, the clerk of the board, had been constituted the agent of the board...
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