Thacker v. Pike County Bd. of Ed.

• Decision Date: 15 March 1946
• Citation: 193 S.W.2d 409,301 Ky. 781
• Parties: THACKER v. PIKE COUNTY BOARD OF EDUCATION.
• Court: Kentucky Court of Appeals

193 S.W.2d 409

301 Ky. 781

THACKER v. PIKE COUNTY BOARD OF EDUCATION.

Court of Appeals of Kentucky

March 15, 1946

Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.

Personal injury action by Lonnie Thacker against Pike County Board of Education. Judgment for defendant, and plaintiff appeals.

Affirmed.

J. E Childers, of Pikeville, for appellant.

James W. Wine, Jr., and J. P. Hobson, Jr., of Pikeville, for appellee.

THOMAS Justice.

The appellant, Lonnie Thacker, by his petition--filed in the Pike circuit court on October 30, 1944, against appellee, Pike County Board of Education--seeks to recover from the Board the sum of $5,000 damages sustained by him as laborer in dismantling a gymnasium building, originally erected and used in connection with the public school in Elkhorn City Kentucky, which was under the control of the defendant. The injury was produced by the giving way and falling of a scaffold by the use of which the laborers performing the dismantling could reach and become located at the point where it was then in progress. It alleged as ground for the action that the platform was constructed under the supervision of the foreman of the crew so engaged, of which plaintiff was a member, and that it was insufficiently constructed because of the negligence of the foreman. It was then alleged that the defendant, Board, knew of such defect or could have known by the exercise of ordinary care by its foreman who also possessed such knowledge, and that plaintiff did not possess knowledge thereof nor could he have obtained it by the exercise of ordinary care. The court sustained a demurrer filed to the petition, followed by plaintiff declining to plead further and his action was dismissed, to reverse which he prosecutes this appeal.

Counsel for appellee relies in support of the judgment on the well founded doctrine that a public agency performing public service is immune from liability to laborers and others in and while discharging the functions of such agency, for injuries sustained by negligence of such employees and that defendant, as the Board of Education of Pike County, is created by statute to perform services for the State in the education of pupils attending the public schools, and is therefore an agency coming within the stated and approved rule. In substantiation of that contention learned counsel for appellee cites and relies upon the cases of Trustee of School District No. 1 v. Jameson, 15 S.W. 1, 779, 12 Ky.Law Rep. 719; Clark v. Nicholasville, 87 S.W 300, 27 Ky.Law Rep. 974; Board of Park Commissioners v. Prinz, 127 Ky. 460, 105 S.W. 948; Commonwealth ex rel. v. Burnett, 237 Ky. 473, 475, 35 S.W.2d 857; Middleton v. Middleton, 239 Ky. 759, 40 S.W.2d 311; Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W.2d 915, and Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W.2d 700, 145 A.L.R. 1333.

The opinions in those cases and others, cited in them, hold without qualification, that such public serving agencies are not required to respond in damages in actions ex delicto sustained by the negligence of their agents, servants or employees, or to others while in the discharge of their public functions, and that boards of education are embraced within that exemption rule.

In the Clark case a pupil fell from the stairway of a public school building in Nicholasville to the floor and sustained injuries for which he sought recovery against the Board. The court sustained the ruling of the trial court which held that defendant was not liable, on the ground supra, and in the course of its opinion said: 'If it could be done, the system would be injured, and the public...