Smith v. Seattle School Dist. No. 1

• Decision Date: 03 August 1920
• Docket Number: 15797.
• Citation: 112 Wash. 64,191 P. 858
• Parties: SMITH v. SEATTLE SCHOOL DIST. NO. 1 et al.
• Court: Washington Supreme Court

191 P. 858

112 Wash. 64

SMITH v. SEATTLE SCHOOL DIST. NO. 1 et al.

No. 15797.

Supreme Court of Washington

August 3, 1920

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Manley Smith, an infant, by Bessic Martin, his guardian ad litem, against Seattle School District No. 1 and others. Judgment for defendants on demmurrer to the complaint, and plaintiff appeals. Affirmed.

An employé of a county superintendent, who was holding a teachers' institute in school building, has no greater rights therein than the superintendent has against the school district, but is a mere invitee, and the district is not liable for injuries to the employé resulting from defective condition of the elevator shaft.

Meyers & Couden and Edward H. Wright, all of Seattle, for appellant.

Fred C Brown and Wm. Parmerlee, both of Seattle, for respondents.

HOLCOMB C.J.

Plaintiff a minor, brought this action by his guardian ad litem against defendants to recover for personal injuries sustained by him because of the alleged negligence of defendants in the operation of a freight elevator while plaintiff was employed in a lunchroom maintained at the Broadway High School building in Seattle. This appeal is from orders of the trial court sustaining separate demurrers, by defendants Seattle school district No. 1 and King county, to plaintiff's amended complaint, and dismissing his action upon his refusal to plead further.

The alleged facts may be summarized as follows: Respondent Seattle school district No. 1 had caused a lunchroom to be installed in the Broadway High School building, and during regular sessions of the school it was operated for the convenience of teachers and pupils of that school; but on August 28, 1917, at the time of appellant's injury, the lunchroom was in operation for the benefit of teachers attending an institute being conducted in the building by the county school superintendent with the permission of respondent Seattle school district No. 1. This lunchroom was on the fifth floor of the building, and the electric freight elevator upon which appellant was injured ran between the fifth floor and the basement. On the 28th day of August 1917, appellant, a boy 12 years of age, was employed by the manager of the lunchroom to assist in kitchen work in connection with the operation of the lunchroom, and in the performance of such duties he was directed by the manager to do an errand in the basement. He used the elevator to reach the basement, and in attempting to return the same way he stepped into the open space between the edge of the elevator and the wall of the shaft, and sustained the injuries for which recovery is sought.

The complaint charged that the elevator was negligently maintained, because: First, there was a space of from four to six inches between the floor of the elevator and the front wall of the elevator shaft, with no guard to prevent a person riding on the elevator from stepping therefrom into the open space between the edge of the elevator floor and the wall of the shaft; and because, second, no notice was posted in or near the elevator calling attention to its construction or to the fact that its operation by a person of tender years was dangerous and constituted a menace to life and limb. Respondents were charged by the complaint with notice of the alleged dangerous condition of the elevator.

Portions of paragraphs 5 and 6 of the amended complaint read as follows:

'That the said lunchroom was constructed and equipped in said high school building for the purpose of furnishing healthful food to the pupils and teachers of said Broadway high school while they are in attendance at the sessions of said school. That said lunchroom was not constructed or maintained for profit, but solely for the purpose of contributing to the physical welfare of the pupils in attendance at said school.'

'That for the convenience of the teachers and others who were required to attend the session of the said teachers' institute the said county school superintendent made arrangements for the operation of the lunchroom and its equipment, which was in said high school building during the period when said institute was in session. That said lunchroom was operated during said period with the knowledge and consent of said school district, by direction of the said county school superintendent of King county, Wash., not for the profit of said county, but solely in connection with the holding of said institute.'

The holding of institutes is required by statute (sections 4575 to 4583, Rem. Code); and the use of 'the schoolroom' for certain public gatherings is authorized by section 4481, Rem. Code. So the school district was empowered to permit the county superintendent of schools to conduct a teachers' institute in Broadway High School building. But we do not think authority can be shown for the conducting of this lunchroom for the convenience of persons in attendance at the institute. The holding of teachers' institutes is not a county function. That is manifestly a function of the county school superintendent under the statute.

Appellant contends that a municipal corporation, including a county, is impliedly liable under the maxim of respondeat superior for the negligence of its servants and agents in the discharge of its purely corporate powers as distinguished from those of a governmental nature, and that, the fact of agency being established, the liability of the municipality is determined by the rules which govern the relation of master and servant unless it is expressly exempted by statute from the application of the rule. But this presupposes that the county superintendent in this case is the agent of the county, and that as such the county must respond under the maxim of respondeat superior for the tort or negligence of the county superintendent. The relation of principal and agent does not exist, however, between a municipality and the agents it appoints or employs in the execution of its governmental powers; for they are generally considered public agents or agents of the state and not of the corporation. Its officers directly elected by the people are not its agents. An officer whose duties are prescribed by statute, whose authority is not derived from the corporation, and who is not subject to its control, is not its agent for whose...