Todd v. Curators of University of Missouri

• Decision Date: 14 February 1941
• Docket Number: 37271
• Citation: Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063 (Mo. 1941)
• Parties: Clarence Todd, Appellant, v. The Curators of the University of Missouri, a Corporation
• Court: Missouri Supreme Court

147 S.W.2d 1063

347 Mo. 460

Clarence Todd, Appellant, v. The Curators of the University of Missouri, a Corporation

No. 37271

Supreme Court of Missouri

February 14, 1941

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

E E. Hairgrove, North T. Gentry and George F Hollis for appellant.

(1) The petition is sufficient in form and substance. It is based on the violation of a statute by respondent that requires that all scaffolds for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon. R. S. 1929, sec. 13238. The falling of the scaffold is prima facie evidence of the negligent construction of it. Guthrie v. Gillispie, 6 S.W.2d 887; Prapolenis v. Const. Co., 279 Mo. 358. The violation of a statute is an act of negligence by the employer. Boll v. Glass & Paint Co., 321 Mo. 105. (2) Respondent may argue to the court that it cannot be sued; but such question was not raised by its demurrer in the trial court; and it cannot be raised for the first time in this court. If respondent had intended to take advantage of an alleged privilege or alleged exemption, it should have set out the same in its demurrer; for only such questions as are raised by a demurrer can be considered by the court. "The demurrer shall distinctly specify the grounds of objection to the pleadings." R. S. 1929, sec. 771. The object of the statute was to sharply direct the trial court's mind to the precise ground of objection relied on by demurrant. Alnut v. Leper, 48 Mo. 321; McClure v. Phillips, 49 Mo. 316; Clark v. Grand Lodge, 43 S.W.2d 406; Jones v. McGonigle, 327 Mo. 468, 37 S.W.2d 892; Eads v. Gains, 58 Mo.App. 594; Clark v. King, 178 Mo.App. 386; Bliss on Code Plead. (2 Ed.), sec. 423a. But if the court cares to consider the new question raised by respondent's counsel, appellant's counsel respectfully refers the court to the statute which granted the charter to respondent. Said statute is as follows: "Section 1. A University is hereby instituted in this State, the government whereof shall be vested in a board of curators. Section 2. The University is hereby incorporated, and created a body politic, and shall be known by the name of 'The Curators of the University of the State of Missouri,' and by that name shall have perpetual succession, power to sue and be sued, complain and defend in all courts of law and equity, to make and use a common seal, and to alter the same at pleasure, to take, purchase and hold, to sell, convey and otherwise dispose of lands and chattels." Laws 1839, p. 176. Following that statute, and especially the part that gave respondent power "to sue and be sued, complain and defend in all courts," numerous suits have been instituted by it, and numerous suits have been instituted against it, and our courts have recognized its right to sue and be sued. Head v. Curators of University, 47 Mo. 220; State v. Curators of University, 57 Mo. 178; State ex rel. Curators v. Halladay, 60 Mo. 596; McGuire v. Curators of University, 271 Mo. 359; State ex rel. Curators v. Walker, 240 Mo. 708; State ex rel. Heimberger v. Curators, 268 Mo. 598; Babb v. Curators of University, 40 Mo.App. 673; Niedermeyer v. Curators, 61 Mo.App. 654; Melek v. Curators, 213 Mo.App. 572; State ex rel. v. Canada, 344 Mo. 1238; The statute remained in that form for seventy years. R. S. 1845, p. 1034, sec. 2; R. S. 1855, p. 1498, sec. 2; G. S. 1865, p. 251, sec. 18; Wag. Stat. 1870, 1872, p. 1291, sec. 18; R. S. 1879, p. 1423, sec. 7230; R. S. 1889, sec. 8693; R. S. 1899, sec. 10466. In 1909 the statute was amended, and the name of the corporation was changed to "The Curators of the University of Missouri." And there was a further amendment of the statute which authorized said corporation "to condemn and appropriate real estate or other property, or any interest therein, for any public purpose, etc." Laws 1909, p. 885, sec. 2; R. S. 1909, sec. 11097. In 1919 there was a further amendment of the statute, which does not concern us, except that the authority of respondent "to sue and be sued, complain and defend in all courts," was retained in the amended statute. Laws 1919, p. 698, sec. 1097; R. S. 1919, sec. 11523; R. S. 1929, sec. 9626.

Lee-Carl Overstreet for respondent.

(1) The action of the trial court in sustaining respondent's demurrer was correct because respondent is a quasi corporation, public corporation, or instrumentality of the State of Missouri, and as such is not liable in actions ex delicto. Secs. 9625, 9626, R. S. 1929; Arts. 20, 21, 25, Chap. 57, R. S. 1929; Head v. Curators of Mo. University, 47 Mo. 220; Harris v. Compton Bond & Mtg. Co., 244 Mo. 664, 149 S.W. 603; State v. Long, 278 Mo. 379, 213 S.W. 436; State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698; Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; Moxley v. Pike County, 276 Mo. 449, 208 S.W. 246; Lamar v. Bolivar Special Road Dist., 201 S.W. 890; Arnold v. Worth County Drain. Dist., 209 Mo.App. 220, 234 S.W. 439; State ex rel. Hausgen v. Allen, 298 Mo. 448, 250 S.W. 913; Greenwell v. Wills and Sons, 239 S.W. 578; D'Arcourt v. Little River Drain. Dist., 212 Mo.App. 610, 245 S.W. 394; Ritchie v. State Board of Agriculture, 217 Mo.App. 202, 260 S.W. 488; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Dick v. Board of Education of St. Louis, 238 S.W. 1073; Meadow Park Land Co. v. School Dist. of Kansas City, 301 Mo. 688, 257 S.W. 441; Krueger v. Board of Education of St. Louis, 310 Mo. 239, 274 S.W. 811, 40 A. L. R. 1086; Robinson v. Washtenaw Circuit Judge, 228 Mich. 225, 199 N.W. 618. (2) The matter of higher education is a governmental function of the State of Missouri, in the performance of which function the Curators of the University of Missouri, as the agent of the State, is not liable in tort actions unless the Legislature specifically and positively waives immunity. Mo. Const., Art. XI, Sees. 5, 6, p. 147, R. S. 1929; Arts. 20, 21, 25, Chap. 57, R. S. 1929; Bush v. State Highway Comm., 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Comm., 48 S.W.2d 78; Manley v. State Highway Comm., 82 S.W.2d 619; Murtaugh v. St. Louis, 44 Mo. 479; Cassidy v. St. Joseph, 247 Mo. 197, 152 S.W. 306; Zummo v. Kansas City, 285 Mo. 222, 225 S.W. 934; Richardson v. Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A. L. R. 508; Secs. 3356, 5131, 8102, 9271, 9515, 9569, 9596, 9625, 9626, 9653, 12348, R. S. 1929; Laws 1937, pp. 449, 479, secs. 9325, 13557; Davie v. Board of Regents, University of California, 66 Cal.App. 693, 227 P. 243. (3) It is contrary to public policy to permit public educational or charitable funds to be subjected to the demands of those injured by the negligence of those administering such funds, and respondent is without authority to convert public educational funds in its hands to pay judgments arising from tort actions. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Meadow Park Land Co. v. School Dist. of Kansas City, 301 Mo. 688, 257 S.W. 441; Dick v. Board of Education of St. Louis, 238 S.W. 1073; Eads v. Y. W. C. A., 325 Mo. 577, 29 S.W.2d 701; Nicholas v. Evangelical Deaconess Home & Hospital, 281 Mo. 182, 219 S.W. 643; Arts. 20, 21, 25, Chap. 57, R. S. 1929; Laws 1939, p. 62. (4) The provisions of Section 13238, Revised Statutes 1929, have no application to respondent, which is a public corporation, instrumentality or agency of the State of Missouri. Secs. 13238, 13241, R. S. 1929; Laws 1891, p. 159, secs. 19, 22; Minea v. St. Louis Cooperage Co., 175 Mo.App. 91, 157 S.W. 1006; Simpson v. Iron Works Co., 249 Mo. 376, 155 S.W. 810; Mo. Const., Art. IV, Sec. 28, p. 84, R. S. 1929; Williams v. Railroad Co., 233 Mo. 666, 136 S.W. 304; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1. (5) Respondent's demurrer upon the ground that appellant's amended petition did not state facts sufficient to constitute a cause of action was sufficiently specific to raise the question of respondent's non-liability for acts of negligence for the reason that appellant's petition, coupled with the doctrine of judicial notice, clearly discloses that respondent is not liable for acts of negligence. Morgan v. Bouse, 53 Mo. 219; Wilson v. Polk County, 112 Mo. 126, 20 S.W. 469; Troll v. Third Natl. Bank, 278 Mo. 74, 211 S.W. 545; Adams v. Stockton, 133 S.W.2d 687; Clark v. Grand Lodge, 328 Mo. 1084, 43 S.W.2d 404; Ruggles v. International Assn. of Iron Workers, 331 Mo. 20, 52 S.W.2d 860; Secs. 9625, 9626, R. S. 1929; Pipes v. Mo. Pac. Ry. Co., 267 Mo. 385, 184 S.W. 79; Brennan v. Cabanne Methodist Episcopal Church, 192 S.W. 982; State v. Long, 278 Mo. 379, 213 S.W. 436.

OPINION

Clark, J.

Plaintiff sued to recover for personal injuries alleging: that defendant is a corporation, created by law as an educational institution, with power to contract and sue and be sued; that it conducts the State University and has control of the campus and buildings thereon; that it employed plaintiff to make certain repairs on one of said buildings; that under the law it was the duty of defendant to furnish plaintiff a safe place to work; that defendant negligently furnished plaintiff an insecure scaffold (described) upon which to work; that said scaffold fell with plaintiff and he suffered certain injuries.

Defendant filed a demurrer stating "that it appears upon the face of plaintiff's amended petition that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant, Curators of the University of Missouri."

The court sustained the demurrer and plaintiff has appealed.

Appellant cites our statute and certain decisions on the allegations required to properly charge negligence in...