Smith v. Consolidated School Dist. No. 2, No. 2

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLMAN
Citation408 S.W.2d 50
PartiesTerry Lee SMITH, a minor, by his Mother and Next Friend, Peggy Smith, Appellant, v. CONSOLIDATED SCHOOL DISTRICT NO. 2, Joe Herndon, Superintendent of Consolidated School District, and H. Robert Cradock, Respondents.
Decision Date14 November 1966
Docket NumberNo. 51349,No. 2

Page 50

408 S.W.2d 50
Terry Lee SMITH, a minor, by his Mother and Next Friend,
Peggy Smith, Appellant,
Superintendent of Consolidated School District No.
2, and H. Robert Cradock, Respondents.
No. 51349.
Supreme Court of Missouri, En Banc.
Nov. 14, 1966.

Page 52

Donald F. Price, Clem W. Fairchild, Herbert M. Kohn, Kansas City, of counsel, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.

James H. Greene, Jr., Raytown, E. E. Thompson, Kansas City, of counsel, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondents.

HOLMAN, Judge.

Plaintiff, a minor, sued the defendant school district, its superintendent, and a physical education instructor for alleged negligence, praying $35,000 in damages for his personal injuries. Each defendant filed a separate motion to dismiss for failure to state a claim on which relief could be granted. All three motions were sustained. Plaintiff filed his motion to amend the judgment or for a new trial, and therein stated, among other things, that the court erred in refusing to grant leave to amend. No request for leave to amend appears in the record and, though counsel argue here that an amendment should have been permitted, there is nothing before us on that point. The motion was overruled and plaintiff appealed in due course.

The appeal was originally heard in Division Two. An opinion was prepared which was not adopted and the case was thereafter transferred to Court en Banc. Additional briefs were filed and the cause was reargued and resubmitted. An opinion was thereafter prepared which was not adopted and the cause has recently been reassigned to the undersigned. Portions of the lastmentioned opinion are here adopted without the use of quotation marks.

The school involved was the South High School at Raytown. The injury was alleged to have been received in a wrestling class while plaintiff was practicing 'holds and falls and other wrestling experiences.' The petition alleged, in substance, omitting essentially formal matters: that the State Department of Education had not ordered, suggested or recommended wrestling as a part of the physical education curriculum, but that defendants made it a required part thereof for the school year 1963--1964; that therein it was the duty of the defendants to 'promote rules, regulations, instructions, teaching and supervision' to protect the students; that on January 24, 1964, plaintiff was engaged in that activity, as required, and that he had no knowledge of wrestling but relied on the defendants, and was injured. It was further alleged that defendants, jointly and severally, were negligent: (1) in failing to properly instruct plaintiff and in failing to 'designate rules and regulations' for wrestling activities; (2) in failing to ascertain if plaintiff and his wrestling partner understood the 'instructions so given,' the danger of injury, and the methods of protection; (3) that 'defendants' were present and saw or could have seen that plaintiff was about to be injured and failed to warn him or stop the wrestling; (4) in failing to exercise 'ordinary care under the circumstances,' and in failing to 'employ' proper instruction; (5) in failing to 'employ proper supervision,' and (6) in failing to perform their statutory duty 'to select and employ a suitable and competent instructor.' As to the school district alone, plaintiff alleged that it failed to 'select and employ a suitable and competent Superintendent of Schools to control the wrestling and employment of competent teachers,' that it failed to eliminate wrestling from its curriculum and that it thus failed to comply with 'the laws of the State.' It was further alleged that 'as a direct and approximate result' of the claimed negligence plaintiff sustained an injury to his shoulder and to other specified parts of his body.

Page 53

The points made by plaintiff's counsel, including those in their original and supplemental briefs, are: that the doctrine of sovereign immunity is archaic and it should be abolished; that defendants acted outside their legal and statutory powers; that an amendment of the petition should have been permitted; that the motions to dismiss should have been considered separately; that if any immunity be held to exist, the individual defendants do not share it; that the individual defendants are liable for their own acts, whether of misfeasance or nonfeasance; that it was the duty of the Superintendent to employ only 'Totally Proficient' persons to instruct in an 'unauthorized activity'; and, finally, that if the instructor Cradock was negligent then Herndon is also liable under the principles applicable to a master-servant relationship.

The case is briefed jointly for the defendants, but with differing issues. Counsel say, in essence, that the rule of sovereign immunity is fully effective, and that it protects the school district from all liability; that the individual defendants were performing governmental and discretionary functions and that they are not liable in actions for negligence; that the petition alleges, as to them, mere nonfeasance for which they would not be liable in any event; that they stood in the relation of loco parentis to the plaintiff, and for that reason are not liable for an unintentional tort.

Before reaching the points of ultimate controversy, we shall clear up a few others. The record made on the sustaining of each motion was that the motion to dismiss was sustained. This was not followed by an order that the cause was dismissed as to the respective defendant, which is certainly a more acceptable practice if that is what is really intended. However, as stated, no request for leave to amend is shown, and the plaintiff filed his motion to 'Amend Judgment' or for a new trial, obviously regarding the order as a final judgment. That motion was overruled. Under the authorities the order now appealed from constituted a final, appealable judgment. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Missouri Military Academy v. McCollum, Mo.App., 344 S.W.2d 636; Heard v. Fry's Estate, Mo.App., 336 S.W.2d 729.

Counsel for plaintiff insist that the inclusion of wrestling in the curriculum as a required course in physical education was outside of the defendants' lawful authority. They cite nothing which so shows. Both sides go outside the record in discussing supposed regulations and manuals of the State Department of Education. Section 163.250, RSMo 1959, cited by plaintiff, which was repealed, effective July 1, 1965, Laws 1963, p. 200, and replaced by § 161.102 Cum.Sup.1965, merely gives the Department authority to adopt rules and regulations for courses in physical education and to...

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