Sherwood v. Moxee School Dist. No. 90, 35511

• Decision Date: 22 June 1961
• Docket Number: No. 35511,35511
• Citation: 58 Wn.2d 351,363 P.2d 138
• Parties: Henry A. SHERWOOD and Mae Sherwood, his wife, Appellants, v. MOXEE SCHOOL DISTRICT NO. 90, Respondent.
• Court: Washington Supreme Court

Page 351

58 Wn.2d 351

363 P.2d 138

Henry A. SHERWOOD and Mae Sherwood, his wife, Appellants, v. MOXEE SCHOOL DISTRICT NO. 90, Respondent.

No. 35511.

Supreme Court of Washington, Department 2.

June 22, 1961

Rehearing Denied Sept. 5, 1961.

Tonkoff, Holst & Hopp, Yakima, for appellant.

Halverson, Applegate & McDonald, and Walter E. Weeks, Jr., Yakima, for respondent.

FOSTER, Judge.

Appellants, plaintiffs in the superior court, appeal from a judgment dismissing their complaint pursuant to motion against the complaint alone without additional factual showing as authorized by Rules of Pleading, Practice & Procedure 12(b) and 56, RCW Vol. O. In other words, the motion to dismiss for failure to state a claim upon which relief may be granted was substituted for the general demurrer of the former practice.

Appellants sued for the death of their son who was a pupil in the Moxee High School. The complaint alleged that the tragedy occurred on a school day while the boy was in the school's care during an initiation ceremony of a high school lettermen's society. It is alleged that the ceremony was under the auspices of the school district whose agents were present and in charge of the meeting. There are several specifications of negligence.

No longer is it necessary for a plaintiff to plead the facts 'constituting a cause of action.' Indeed, the phrase 'cause of action' no longer appears anywhere in the rules of civil procedure. The word 'claim' alone is used. Nagler v. Admiral Corp., 2 Cir., 248 F.2d 319; Dioguardi v. Durning, 2 Cir., 139 F.2d 774; Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 2 Cir., 133 F.2d 187.

The present requirement is:

'* * * (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. * * *' ¹ Rule of Pleading, Practice and Procedure 8(a)(1), RCW Vol. O Rule of Pleading, Practice and Procedure 7(c), RCW Vol. O, ² abolishes demurrers. This means that demurrers are abolished, not masqueraded under another name, ³ and that there is no necessity for stating the facts constituting a 'cause of action;' but that, on the contrary, a complaint is sufficient if it contains a short and plain statement of the claim showing that the pleader is entitled to relief and a demand therefor.

In Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, the United States Supreme Court, in simple and unmistakable terms, stated the test to be applied in passing upon this motion as follows:

'* * * In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. * * *'

See, also: Knudsen v. Torrington Co., 2 Cir., 254 F.2d 283; Fair v. United States, 5 Cir., 234 F.2d 288; Des Isles v. Evans, 5 Cir., 200 F.2d 614; Callaway v. Hamilton Nat. Bank of Washington, 90 U.S.App.D.C. 228, 195 F.2d 556; American Federation of Labor v. Western Union Tel. Co., 6 Cir., 179 F.2d 535; Mullen v. Fitz Simons & Connell Dredge & Dock Co., 7 Cir., 172 F.2d 601, certiorari denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed 1758; Woods v. Hillcrest Terrace Corp., 8 Cir., 170 F.2d 980; United States v. Arkansas Power & Light Co., 8 Cir., 165 F.2d 354; Fuerst v. Noell, 8 Cir., 156 F.2d 257; Fitz Simons & Connell Dredge & Dock Co. v. Savela, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758.

In respondent's brief, for the first time, factual representations are made from which it argues that the activity in question was ultra vires. Such matters were not brought in to the record by affidavit or deposition of persons with testimonial knowledge as provided by Rules of Pleading, Practice & Procedure 12(b) and 56, RCW Vol. O, or by any of the many devices provided for that purpose, and cannot be considered. ⁴

By act of the territorial legislature of 1869 (Laws of 1869, chapter 54, page 154 (RCW 4.08.110)), school districts are vicariously liable for negligence. The text is:

'An action at law may be maintained by any county, incorporated town, school district or other public corporation of like character, in its corporate name, and upon a cause of action accruing to it, in its corporate character and not otherwise, in any of the following cases:

'(1) Upon a contract made with such public corporation;

'(2) Upon a liability prescribed by law in favor of such public corporation;

(3) To recover a penalty or forfeiture given to such public corporation;

'(4) To recover damages for an injury to the corporate rights or property of such public corporation.' RCW 4.08.110

'An action may be maintained against a county or other of the public corporations mentioned or described in RCW 4.08.110, either upon a contract made by such county, or other public corporation in its corporate character and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation. RCW 4.08.120. ⁵

Under this statute, counties were held vicariously liable for negligence in Kirtley v. Spokane County, 1898, 20 Wash. 111, 54 P. 936, 937. Judge Reavis, who wrote the court's opinion, commented:

'* * * The state of Oregon from an early date had a statute identical in its terms with that in force in this state, and, while such statute existed in that state, it was held to confer a right of action against the county for neglect in allowing bridges to be out of repair. McCalla v. Multnomah County, 3 Or. 424; and again affirmed in Sheridan v. City of Salem, 14 Or. 328, 12 Pac. 925. * * * Our statute appears to have been taken from Oregon after it had been construed by the courts of that state.'

Redfield v. School District No. 3, 1907, 48 Wash. 85, 92 P. 770, was the first Washington case in which a school district was held vicariously liable for negligence. Eight years later (1915), the same rule was applied in an action arising out of the maintenance of exercise ladders. Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 P. 1004.

At the ensuing session of the legislature (1917), a bill to immunize school districts for negligence passed the Senate, but a compromise instead was enacted which exempted school districts for negligence connected only with athletic apparatus or manual training equipment. It is now codified as RCW 28.58.030. ⁶

With the greatest frequency, it is erroneously stated by American judges, text writers and commentators that, by the common law of England, ⁷ school districts were not liable for negligence because of sovereign immunity, notwithstanding the fact that there were no free public schools in England before 1870, ⁸ and there, schools have always been vicariously liable for negligence. 13 Halsbury's Laws of England (3rd ed.) 623, § 1295. ⁹

The prevailing rule in the United States is that school districts, because of sovereign immunity, are not liable for the negligence of their servants, agents or employees. Only in three states, Washington, California and New York, ¹⁰ has that immunity been abrogated by statute and vicarious liability substituted. The purpose of such statutes is to make the school district liable upon precisely the same basis as an individual or corporation is responsible. ¹¹ Such is the law of this state ¹² except as to injuries from athletic apparatus and manual training equipment. ¹³

Morris v. Union High School District A, 160 Wash. 121, 294 P. 998, decided that a school district was liable for the negligence of the football coach for an injury sustained by a pupil participating in a school football contest. See, also, Briscoe v. School District No. 123, 32 Wash.2d 353, 201 P.2d 697.

The universal custom of high schools awarding the school's monogram to members of its athletic teams is a matter of common knowledge, of which courts may take judicial notice. The immunity of school districts for negligence accounts for the absence of reported decisions respecting similar accidents. Although the school district was immune, the supreme court of South Dakota affirmed a judgment (De Gooyer v. Harkness, 1944, 70 S.D. 26, 13 N.W.2d 815, 816 against a high school football coach for the death of a student player in the initiation ceremonies of a high school lettermen's club. The coach, Gardner, was present during the ceremony and tested the device used in the initiation rite. With respect to the liability of the coach, the court's conclusion was:

'We consider first the liability of the defendant Gardner. The facts disclose that Mr. Gardner actively participated in the initiation activities, that it was he who tested the electrical appliance, and that he played an active role in this whole proceeding of administering the electric shock. We are of the opinion therefore, that so far as his liability is concerned it is immaterial whether he was acting in a personal capacity or in his capacity as athletic coach or teacher.'

We do not know the facts, and the purpose of the rules of civil procedure is to obtain a decision on the merits as opposed to a mere pleading motion. ¹⁴ Nor is it necessary for this purpose to incur the expense and delay of a full-dress trial. On a motion to dismiss, appropriate devices are afforded by Rules of Pleading, Practice & Procedure 12(b) and 56, RCW Vol. O, to present all the facts. ¹⁵ By statute, the liability of the school district for negligence is the same as the liability of any person or corporation except that a school district has absolute immunity for accidents resulting from 'any athletic apparatus or appliance or manual training equipment.' This action is not within the exception. The instant complaint alleged that the initiation in question was under the auspices and supervision of the school district's agents, servants and employees and that the...