Stovall v. Toppenish School Dist. No. 49

• Decision Date: 01 March 1920
• Docket Number: 15479.
• Citation: 188 P. 12,110 Wash. 97
• Court: Washington Supreme Court
• Parties: STOVALL v. TOPPENISH SCHOOL DIST. NO. 49 et al.

188 P. 12

110 Wash. 97

STOVALL v. TOPPENISH SCHOOL DIST. NO. 49 et al.

No. 15479.

Supreme Court of Washington

March 1, 1920

Department 1.

Appeal from Superior Court, Yakima County; Harcourt M. Taylor Judge.

Action by William Ralph Stovall, by his guardian ad litem, against the Toppenish School District No. 49 and another. Judgment for plaintiff, and defendant School District appeals. Affirmed.

O. R Schumann, J. Lenox Ward, and Dolph Barnett, all of North Yakima, for appellant.

Snively & Bounds, of Yakima, for defendant Meyers.

Roscoe Maddox, of Toppenish, and Grady & Shumati, of Yakima, for respondent Stovall.

MAIN, J.

The plaintiff, being a minor, brought this action by his guardian ad litem for the purpose of recovering damages for personal injuries alleged to be due to the negligence of the defendant school district. The cause was tried to the court and jury and resulted in a verdict and judgment sustaining a recovery. From this judgment the defendant appeals.

On November 19, 1917, respondent, a boy eight years old, was injured upon the playground of the Lincoln School in Toppenish, Yakima county. The accident occurred on a Monday. During the previous week there had been removed from the basement of the school building a steel tank about 20 feet in length and approximately 3 1/2 feet in dismeter. The tank had previously been used by the school in connection with its water system, but, being no longer necessary for that purpose, the officers of the district had given it to one W B. Meyers, in consideration that he would remove the tank from the school premises and restore the building to its original condition; it being necessary to make an opening in the foundation of the building in order to remove the tank from the basement. Meyers employed one S. L. Ames to remove the tank and place it in the street. The work of removing the tank was begun some time during the week prior to the accident. It consumed several days, the school being then in session, and on Friday afternoon was removed and placed near the side of the building, with concrete chunks sustaining it to prevent its being moved about. The tank was placed in this position before the close of school on that day. On the Saturday following, which was not a school day, boys had removed the concrete chunks and in play rolled the tank about the school playground. This occurred also on Sunday. On Monday during the noon hour, the respondent and other boys were playing with the tank. Certain of the boys would roll the tank back and forth on the playground, while others would either stand or sit upon it; the purpose apparently being to see how long those upon the tank could remain there without falling off. While the tank was being rolled in this manner, the respondent and other boys upon it, the respondent either fell or was pushed from the tank by one of the other boys, and sustained a severe injury to his right leg by the tank rolling upon it.

It was for this injury that the action is brought. The principal question is the construction of chapter 92 of the Laws of 1917, which is as follows:

'Section 1. No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omissions of such district, its agents, officers or employés, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.'

The appellant's position is that under this act the action cannot be maintained against the school district. Prior to the passage of this act under the previous statute, Remington's Code, § 951, it had been held, in Redfield v. School District, 48 Wash. 85, 92 P. 770, and Howard v. School District, 88 Wash. 167, 152 P. 1004, Ann. Cas. 1917D, 792, that school districts were liable in actions of this character, if the injury was proximately produced by the negligence of the district. When the act of 1917 was passed by the Legislature there was pending in this court three cases, Bruenn v. North Yakima School District No. 7, 101 Wash. 374, 172 P. 569; Kelley v. School District No. 71, 102 Wash. 343, 173 P. 333, and Holt v. School District No. 7, 102 Wash. 442, 173 P. 335, in which recovery was sought for injuries which occurred to school children upon playground apparatus. The act of 1917 provides:

That 'no action shall be * * * maintained against any school district * * * relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment. * * *'

These words may be separated into two grounds of three each, one including 'park, playground or field house,' and the other 'athletic apparatus or appliance or manual training equipment.' The first three being descriptive of the place where...