Reed v. Rhea County
| Citation | 25 Beeler 247,189 Tenn. 247,225 S.W.2d 49 |
| Parties | , 189 Tenn. 247 REED v. RHEA COUNTY, et al. |
| Decision Date | 17 December 1949 |
| Court | Supreme Court of Tennessee |
O. W. McKenzie, Dayton, Tenn., for plaintiff in error.
C. P. Swafford, Dayton, Tenn., for defendants in error.
According to the declaration, Reed was charged a fee by the Rhea County High School authorities for admission into the stadium of the Rhea County High School to witness a football game between its team and that of another school. Seats (the bleachers) for spectators had been constructed by this High School. While Reed was there seated watching the game his seat and those immediately around him broke. As a result, he fell to the ground several feet below and received injuries. He commenced this action against Rhea County and its Board of Education to recover damages for those injuries. The allegation of his declaration is that these seats broke because they were negligently constructed.
On July 30, 1949 Rhea County demurred to the declaration on the theory that it was engaged in a governmental function in the operation and maintenance of its schools; hence, not liable for the negligence of its officials and employees.
On August 3, 1949 a default judgment was entered against the Rhea County Board of Education, the order reciting that this Board 'has not made defense within the time required by law'. It is provided by this order that 'the plaintiff have and recover of the defendant Board of Education his damages and cost but the amount of damages not clearly appearing to the Court it is considered and adjudged that the plaintiff have a Writ of Inquiry with respect to said damages'.
On August 9, 1949 the demurrer filed by Rhea County was sustained, 'and the cause of action dismissed'. Reed excepted 'to the action of the Court in sustaining demurrer filed on behalf of Rhea County and in dismissing the cause of action--and prays an appeal', which he has perfected.
It will be observed that the order of August 9, dismissed the entire suit and taxed Reed with the costs, notwithstanding the fact that on August 3, 1949 a default judgment had been entered against the Board of Education. Although it is insisted by an assignment of error that the demurrer should not have been sustained as to Rhea County, it is said in the brief of Reed that 'the Judge was correct in dismissing the suit as to Rhea County as the Board of Education is a separate and distinct entity from the County and suit must be filed against the School Board and not against the County for any claim they might have'.
It is insisted, however, that the Court erred in dismissing the suit against the Rhea County Board of Education because (1) the Board of Education was acting in a proprietary capacity in that it 'was maintaining a private enterprise for profit', according to Reed's insistence, and (2) default judgment had been entered against that Board.
The reply brief of defendants County and its Board says that on August 22, 1949 after the appeal was perfected the default judgment against the Board was set aside and, after entry of an order so permitting, a demurrer was filed by the Board, That order cannot be considered because it is not in the record. 'The jurisdiction of this court is appellate only, and the cause, if tried here at all, must be tried upon the record as made up and filed.' Tennessee Public Serv. Co. v. City of Knoxville, 170 Tenn. 40, 57, 91 S.W.2d 566, 572.
A County Board of Education 'is a part of the state's educational system' and is 'endowed with county * * * functions.' Boswell v. Powell, 163 Tenn. 445, 448, 43 S.W.2d 495, 496. The county's operation and maintenance of its schools is through the agency of a County Board of Education. Code, Sections 2324-2326. 'The operation of the public school system is undoubtedly a governmental function'. State, ex rel. Bise v. Knox County, 154 Tenn. 483, 486, 290 S.W. 405, 406, 50 A.L.R. 1158. It follows that a County Board of Education is a county government entity exercising a governmental function in the operation and maintenance of the schools of the County.
A governmental entity exercising a governmental function is ordinarily not 'to be held liable in a private action for neglect to perform such duties, for acts done while engaged in the performance of such duties, or because they are not performed in a manner most conducive to the safety of employees or the public, unless such liability is expressly fixed by statute', and this applies to the operation and maintenance of the public schools. Odil v. Maury County, 175 Tenn. 550, 136 S.W.2d 500. In the instant case there is no statute fixing such liability. Under this rule it would seem necessary to hold that the Rhea County Board of Education cannot be held liable for the injuries sustained by Mr. Reed.
One reason given as to why a governmental entity is not liable in a private action for negligence in the performance of its duties while acting in a governmental capacity is that such entity 'has no fund out of which satisfaction for damage thus inflicted can be had.' Rogers v. Butler, 170 Tenn. 125, 129, 92 S.W.2d 414, 415. This reason is justified upon the theory that 'it is better that an individual should suffer than that the public should sustain an inconvenience'. McAndrews v. Hamilton County, 105 Tenn. 399, 404, 58 S.W. 483, 484. However harsh and inequitable that reason may seem to be, consistently through the years, this reason has been judicially recognized as applicable to cases of this character, and our Legislature has not seen fit to change the rule. That reason is applicable here. The Rhea County Board of Education has no fund with which to pay a claim of this character. It operates under a budget specifying in detail how each dollar which is entrusted to it shall be expended in its operation of the public schools. Code, section 2324(25).
The lack of funds reason given in justification for the rule of non-liability in such a case as we have here has been strongly emphasized by the very exception made to it in Taylor v. Cobble, 28 Tenn.App. 167, 187 S.W.2d 648, a case in which ...
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