Erie School School District of City of Erie v. Fuess

• Decision Date: 14 November 1881
• Citation: Erie School School District of City of Erie v. Fuess, 98 Pa. 600 (Pa. 1881)
• Court: Pennsylvania Supreme Court
• Parties: School District of the City of Erie v. Fuess.

98 Pa. 600

School District of the City of Erie versus Fuess.

Supreme Court of Pennsylvania.

October 18, 1881.

November 14, 1881.

October 18th 1881.

Before SHARSWOOD, C.J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Erie county: Of October and November Term 1881, No. 85.

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S.A. Davenport, for the plaintiff in error.—A school district is a quasi corporation of limited powers and can be held liable only to the extent fixed by the General School Law of 1854. Such liability extends only to the official acts of the directors, acting collectively as a school board. The negligence complained of, not being that of the board, the plaintiff has no right of action against the school district: Small v. Danville, 51 Me. 359; Gray v. City of Brooklyn, 50 Barb. 365; 1 Dillon on Munic. Corp. 94, 96; 2 Addison on Torts, 1198; Wharton v. School Directors, 6 Wright 363; Kingsley v. School Directors, 2 Barr 28; Wachob v. School District, 8 Phila. 568. Even if the school district were liable to the extent that a municipal or other corporation is liable, the plaintiff would have no cause of action. Hendry was a contractor, exercising an independent employment, and not a servant or agent of the school district; consequently he, and not the school district was liable for damages arising from his negligence, or that of his employés: Allen v. Willard, 7 P.F. Smith 374; Reed v. Allegheny, 29 P.F. Smith 302; Erie v. Caulkins, 4 Norris 253. The fact that Hendry was acting under the direction of Shenk, the superintendent employed by the board, and that individual members of the board saw Hendry's men at work and did not stop them, does not change the above rule: Fair v. Philadelphia, 7 Norris 311; Reed v. Allegheny, supra; 16 Amer. L. Register, 56; Bank of Pittsburgh v. Whitehead, 10 Watts 402; Bank of Northern Liberties v. Davis, 6 W. & S. 289; Kingsley v. School Directors, 2 Barr 28.

Brainerd (Benson with him), for the defendant in error.— The contract with Hendry provided that the board may deliver possession before July 3d; and Shenk, the superintendent, who represented the board, did deliver possession and direct the commencement of the work on the 21st of June. This rendered the school district liable. A school district is not exempt from any liability for negligence, to which a municipal corporation would be liable. It is in law a municipality of special statutory creation, similar to counties and townships: Commonwealth v. Morrisey, 5 Norris 417; Wharton v. School Directors, 6 Wright 363.

Mr. Justice TRUNKEY delivered the opinion of the court November 14th 1881.

John Hendry contracted with the school district to furnish all the materials and perform all the work for the extraordinary repairs upon school building No. 7, in strict compliance with the plans and specifications prepared by Henry Shenk, under the superintendence of said Shenk, or such other person as the district might designate. He undertook to do the work with reference to plans and specifications already prepared, and agreed that he should not be entitled to pay for extra work or material, unless the same should be done or furnished on the written direction of the district indorsed on the contract. Possession was to be delivered to him for commencement of the work, on July 3d 1875, at which time the house would be unoccupied. It was contemplated that possession would be given at an earlier date, if the building should be previously vacated, but the district neither delivered possession nor agreed that the work should be commenced before the time named in the contract.

By agreement of same date, the district employed Shenk to superintend the work to be done by Hendry, and devote all the time necessary to a careful and complete superintendence of the same. His business was to see that Hendry faithfully performed his agreement as the work progressed. He was not authorized to change or modify the contract in any particular. Nothing was committed to him other than to superintend the work which was to be done; he had made the plans and specifications which constituted a part of Hendry's contract; and the allegation that "Shenk was made the agent and superintendent of the school board, with full power to make the plans and specifications, and to begin and control the execution of the work for the board in all its details," is gratuitous.

The plan of the work was such as involved danger to the building. Hendry commenced before he was authorized, and the result proved the prudence of the school board in fixing the date for commencement after the vacation of the schools. The testimony shows that the injury to the plaintiff was caused by gross, if not culpable negligence. Shenk was superintending the work, and some of the members of the board knew the work was being done, before the accident.

In the instructions to the jury the court said: "If the contractor, with the knowledge and assent of the superintendent appointed by the board, began the work before the time fixed in the agreement, and was permitted by him to carry on the work with the presence and knowledge of some of the members of the board, and the jury believe from the evidence that the plan and design...