Treadaway v. Whitney Independent School Dist.

• Decision Date: 16 October 1947
• Docket Number: No. 2751.,2751.
• Citation: 205 S.W.2d 97
• Parties: TREADAWAY et al. v. WHITNEY INDEPENDENT SCHOOL DIST. et al.
• Court: Texas Court of Appeals

205 S.W.2d 97

TREADAWAY et al. v. WHITNEY INDEPENDENT SCHOOL DIST. et al.

No. 2751.

Court of Civil Appeals of Texas. Tenth District. Waco.

October 16, 1947.

Appeal from District Court, Hill County; Penn Jackson, Judge.

Suit by Mrs. Addie Treadaway and husband against the Whitney Independent School District of Hill County, Texas, and M. E. Jones to recover for damages resulting from injuries sustained by Mrs. Addie Treadaway because of the alleged negligence of M. E. Jones in operation of a school bus. From a judgment dismissing plaintiffs' case as to the school district, plaintiffs appeal.

Judgment affirmed.

Horton B. Porter and Bryan & Sims, all of Hillsboro, for appellants.

Morrow & Calvert and Frank G. McDonald, all of Hillsboro, for appellees.

LESTER, Chief Justice.

This suit was instituted against M. E. Jones and the Whitney Independent School District of Hill County, Texas, by Mrs. Addie Treadaway and husband for the recovery of damages as the result of personal injuries sustained by Mrs. Treadaway by reason of the alleged negligence of the said M. E. Jones, who was alleged to be the agent of the school district.

Plaintiffs' petition in part is as follows:

"III. That the defendant, Whitney Independent School District is an incorporated independent school district, incorporated and operating as such under the laws of the State of Texas, at Whitney, Hill County, Texas. That said incorporated school district is operated and controlled by its duly elected Board of School Trustees, as aforesaid, with a President, Vice-President, Secretary, Treasurer, Tax Assessor and Tax Collector, all of whose duties are prescribed by the laws of the State of Texas, each of whom are charged with the performance of such duties as so prescribed by law.

"IV. That in pursuance to its duties as said Board of Trustees of said School District, one M. E. Jones, defendant herein, was employed by said Board of Trustees to teach in said Whitney Independent School District. That said M. E. Jones, at the time of the filing of the original petition herein was a resident of Hill County, Texas, but that he now resides in ____ County, Texas.

"V. That said M. E. Jones was so employed to teach in said school on or about the 17th day of August, 1945, and his duties were principally to teach and to look after the administrative duties connected with the management of said school and school buildings in the town of Whitney. Plaintiffs further allege that said defendant M. E. Jones was not in any way employed as a driver of any school bus or busses which were operated by said incorporated school district at said time. That said school district did in fact operate busses for the purpose of transporting pupils to and from school during the school term and that for such purpose of transporting pupils certain persons other than said M. E. Jones were employed to operate said busses. That each of said regular bus operators or drivers were required to make bond as required by the laws of the State of Texas, and they did in fact make such bonds. Plaintiffs allege that said M. E. Jones was not so required to make a bond by the Board of Trustees as a driver of a school bus and did not in fact make any such bond.

"VI. Plaintiffs further allege that notwithstanding the facts that on or about the 17th day of August, 1945, the school term of said school had not yet begun so as to make the operation of a school bus necessary for transporting of pupils, and for the express purpose of doing certain acts for the benefit and convenience of the said M. E. Jones and said Board of Trustees, the said M. E. Jones did, with the knowledge and consent of said Board of Trustees, operate and drive said school bus bearing License No. XD3288 and Engine No. 3551824, on a public highway, to-wit: Highway No. 22, in Hill County, Texas.

"That the said M. E. Jones did take said bus which was one of several school busses owned and operated by said Independent School District, and drive same from Whitney, Hill County, Texas, to Waco, McLennan County, Texas, and then from Waco, Texas, on the return trip toward Whitney, Texas. That the said M. E. Jones did so drive and operate said bus as above described with the full knowledge and consent of said Board of Trustees for the purpose of benefiting the said M. E. Jones and said Board of Trustees, in that the said M. E. Jones was instructed to take said bus and purchase certain supplies for the school in the city of Waco, Texas, and then bring them back to Whitney in said bus. That said bus was so taken and driven as aforesaid from Whitney, Hill County, Texas, to Waco, Texas, for the benefit and convenience of said M. E. Jones and said Board of Trustees, with full knowledge on the part of the defendants that such school bus was and could be operated for no other purpose than to transport pupils to and from the Whitney Independent School District school building."

The Whitney Independent School District filed an exception to the plaintiffs' petition wherein they attempted to allege a cause of action against it, on the ground that plaintiffs' cause of action was founded in tort, that the school district was a governmental agency of the state and was so functioning on the occasion in question and that the plaintiffs' petition alleged no cause of action against it for which it could be held liable. The court sustained the exception and after plaintiffs refused to amend, it dismissed plaintiffs' case in so far as the school district was concerned.

The question is whether the school district was, at the time in question, functioning as a governmental agency or was acting in a proprietary capacity, as contended by plaintiffs. A school district is in some respect like a municipality in regard to its nonliability. If acting in a governmental capacity,...