Sullivan v. Sch. Dist. No. 1 of City of Tomah

• Decision Date: 06 February 1923
• Citation: 191 N.W. 1020,179 Wis. 502
• Parties: SULLIVAN v. SCHOOL DIST. NO. 1 OF CITY OF TOMAH.
• Court: Wisconsin Supreme Court

179 Wis. 502

191 N.W. 1020

SULLIVAN

v.SCHOOL DIST. NO. 1 OF CITY OF TOMAH.

Supreme Court of Wisconsin.

Feb. 6, 1923.

Appeal from Circuit Court, Monroe County; E. C. Higbee, Judge.

Action by Daniel Sullivan by guardian against School District No. 1 of the City of Tomah. From an order sustaining a general demurrer to the complaint, plaintiff appeals. Affirmed.Graham & Moran, of Tomah, for appellant.

Naylor & McCaul, of Tomah, for respondent.

DOERFLER, J.

[1] The sole question involved herein is whether the defendant, school district, which had established and maintained a manual training department in its schools, can be held liable for injuries sustained by a pupil while attending such department, by reason of the failure of the defendant, as is alleged, to perform its statutory duty to equip certain saws with proper safety devices and safeguards.

Plaintiff contends that under sections 2394-48, 2394-49 and 2394-72 of the Statutes, the aforesaid duties devolved upon the defendant, and that a violation of such duties creates a liability for the injuries sustained by the plaintiff. It must be conceded that under the common law the defendant, in establishing and maintaining this department, is performing a purely governmental function, for which it cannot be held liable for damages sustained by a pupil resulting from the negligence of the officers, agents, and employés of the district. This has been held in an unbroken line of authorities in this state, commencing with Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am. Rep. 760, to Srnka v. Joint School District No. 3, 174 Wis. 38, 182 N. W. 325, and the doctrine of nonliability is fortified further by decisions generally in nearly all of the states of the union. But plaintiff's counsel contends that the aforesaid sections of the statutes have operated so as to change the common-law doctrine in this state, and he presents a forcible and lucid argument to support his position.

As sections 2394-48 and 2394-49, Stats., existed prior to 1913, they referred solely to employers of labor and to employés and frequenters. These statutes were amended by chapter 588 of the Laws of 1913, and by such amendment an obligation was placed upon every owner of a public building, as well as on every employer, to so construct, repair, and maintain such public building or place of employment as to render such employment and building safe.

In Juul v. School District, 168 Wis. 111, 169 N. W. 309, 9 A. L. R. 904, where, in accordance with a custom, a pail containing hot water and chemicals to be used in cleaning the floor of the schoolroom was placed by an employé in a passageway before the pupils had left the school building, it was held that such act must be deemed to have been done by the school district in the performance of its governmental duties, and that the district is not liable for an injury to a pupil who, while passing from one schoolroom to another, fell into such pail and sustained injuries. It was also held in that case that the requirement to maintain, construct, and repair referred to the school building itself, and that, unless the negligent act be one connected with such duty, no liability would ensue.

In Srnka v. Joint School District No. 3, 174 Wis. 38, 182 N. W. 325, it was held that sections 2394-48 and 2394-49 did not apply to a building of a school district because a school district was not embraced in the definition of the term “owner,” as provided by subdivision 13 of section 2394-41 of the Statutes.

While it is conceded by plaintiff's counsel that a school district, as is held in the Srnka Case, cannot be deemed an owner in accordance with the definition of that term by the statute, it is contended that, inasmuch as section 2394--4 (1), in defining the term “employer,” expressly included the school district, and inasmuch as sections 2394-48 and 2394-49 require employers to furnish and use safety devices and safeguards, etc., in order to protect employés and frequenters, that such sections constitute an express declaration under and pursuant to which a school district can be held liable in damages to a pupil for failure to provide such devices. That liability under the industrial and compensation acts ensues where a teacher, being an employé, sustains injury by failure of the district to comply with the statutory provisions, there can be no question. But the liability ensues for a failure such as is herein charged, if at all, only to employés and frequenters. Subdivision 5 of section 2394-41 defines the term “frequenters” as including--

“every person, other than an employé, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser.”

A frequenter is defined in 27 C. J. p. 196, as one who frequents or resorts to a place; or one who attends. See, also, Rex v. LaMothe, 18 Ontario L. R. 310, 318. This definition is in accordance with the commonly accepted meaning of the term. Such definition would embrace not only a licensee, but a trespasser. A trespasser, being excluded by the statutory definition, confines the meaning of the term “frequenter” to a licensee, a person entering upon the place of employment by the express or implied permission of the employer for purposes other than those connected with the employment, as, for instance, vendors or persons having business or other relations with either the employer or the employés. The protection designed by the statutes for frequenters is not the same as that contemplated for employés. Clearly, a frequenter meddling with an unguarded machine and sustaining injury, would not be entitled, either to compensation or to damages, like an employé. Exposed cogwheels in close proximity to a passageway used by frequenters may result in liability, where injury ensues to a frequenter. The same result would follow from unguarded flywheels, pulleys or belting. While an employé under the same circumstances would be entitled to compensation, in addition thereto, he would be entitled to compensation when injured, whether through his negligence or otherwise, in the operation of an unguarded machine. In the instance last mentioned, an employé would not be a trespasser, while a frequenter would become a trespasser while meddling with such mechanism. These facts were in the minds of the legislators when they enacted the statutes for the benefit of employés and frequenters. Persons become employés or frequenters by their own volition, and there is no compulsion for either class of persons to assume their respective positions and attitudes. Under the laws of this state, the attendanceof pupils in schools is not voluntary, but compulsory. They are not permitted as a matter of right to become frequenters in public schools. Pupils are wards of the state, for the purpose of education in the interests of the public, so that they may become useful citizens, and so that they may intelligently be able to exercise the rights of citizenship.

The doctrine of nonliability of a municipality for the performance of governmental functions is so deeply rooted in our jurisprudence, and has so generally been recognized and accepted for so long a period of time, that in effect it has virtually attained the force of a statute, and, while such doctrine has been recognized for over half a century, no Legislature has attempted to nullify it.

[2] Legislation in derogation of the common law should be strictly construed most favorably to the public corporation and not to the claimant...