Turner v. Gastonia City Bd. of Ed.
| Decision Date | 12 June 1959 |
| Docket Number | No. 168,168 |
| Court | North Carolina Supreme Court |
| Parties | Beverlyan TURNER, by her Next Friend, S. B. Turner, v. GASTONIA CITY BOARD OF EDUCATION and North Carolina State Board of Education. |
L. B. Hollowell, Hugh W. Johnston, Gastonia, for plaintiff-appellant.
Malcolm B. Seawell, Atty. Gen., Ralph Moody, Asst. Atty. Gen., Charles D. Barham, Bernard A. Harrel, Staff Attys., Raleigh, for defendant State Board of Education, appellee.
Garland & Garland, by James G. Garland, Gastonia, for defendant Gastonia City Board of Education, appellee.
The facts alleged and those which arise from them by fair implication disclose the claim resulted from an injury to Beverlyan Turner, a pupil, while she was in the act of entering one of the public schools of the City of Gastonia. The injury was caused by the negligent manner in which Houston D. Tolbert operated a lawnmower upon the school grounds. Houston D. Tolbert, at the time, was an employee of the Gastonia City Board of Education.
The claimant contended, as a matter of law: (1) That Houston D. Tolbert, having been employed by the Gastonia City Board of Education to mow the school grounds, was, by reason of such employment, an employee of the North Carolina State Board of Education. (2) That claimant may recover from the State Board damages caused by the negligent act in a tort claim proceeding before the North Carolina Industrial Commission.
The first question presented is whether the City and State Boards of Education may challenge the claim by demurrer.
The North Carolina Industrial Commission is constituted a court by G.S. § 143-291 to hear and pass on 'tort claims against the State Board of Education, the State Highway & Public Works Commission, and all other departments, institutions and agencies of the State.'
The jurisdiction of the Commission is invoked by affidavit in duplicate setting forth certain facts which constitute the basis for the claim. G.S. § 143-297; Floyd v. North Carolina State Highway Commission, 241 N.C. 461, 85 S.E.2d 703; Alliance Co. v. State Hospital, 241 N.C. 329, 85 S.E.2d 386. Adherence to formal rules of pleading is not required but the claim should state facts sufficient to identify the agent or employee and a brief statement of the negligent act that caused the injury. Upon the filing of a claim, the duty devolves upon the Industrial Commission to conduct a hearing, find facts, state conclusions of law, and make an award based thereon. However, if the claim, upon its face, shows that the State department or agency sought to be charged is not liable, then the Commission may end the proceeding. It seems that a proper way to take advantage of the defect is by demurrer. 'A demurrer is a form of pleading incident to every kind of judicial proceeding, and may be defined as an allegation that, admitting the facts of the preceding pleading to be true as stated, no cause is shown why demurrant should be compelled to proceed further.' 71 C.J.S. Pleading § 211. See Hoover v. United States, 10 Cir., 253 F.2d 266; Wooldridge Mfg. Co. v. United States, 98 U.S.App. D.C. 286, 235 F.2d 513. From the foregoing, we conclude that the respondents (boards of education) may challenge the claim by demurrer and have it dismissed if it shows upon its face, as a matter of law, that it cannot be maintained against either board.
The brief of the claimant, the briefs of the City and State Board of Education, and the judgment entered in the court below state the question in the same words: 'Is an employee of a city board of education an agent of the State within the meaning of the State Tort Claims Act?' However, the claim is filed against both the Gastonia City Board of Education and the State Board of Education. The judgment sustained the demurrer and dismissed the claim as to both. The writ of certiorari brings the entire record up for review. '* * * Its (certiorari) office extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of * * *.' Belk's Department Store v. Guilford County, 222 N.C. 441, 23 S.E.2d 897, 901; Chambers v. Zoning Board of Adjustment, 250 N.C. 194, 108 S.E.2d 211. It is necessary, therefore, for us to review the judgment of the superior court as it relates to both the Gastonia City and the State Boards of Education.
Is the Gastonia City Board of Education liable for the injury? Although at the time of the injury the city schools were operated by trustees, the City Board of Education has succeeded to their powers, duties, and liabilities and, if the trustees were liable, it appears the liability would devolve upon the City Board.
The claimant contends that county and city boards of education are made corporate bodies by G.S. § 115-27 (1957 Supplement), with power to sue and defend actions against them. G.S. § 115-31. Their duties and powers are fixed by G.S. § 115-35:
G.S. § 115-47 (1957 Supplement) provides: 'It shall be the duty of every county and city board of education to provide for the prompt monthly payment of all salaries due teachers, other school officials and employees, all current bills and other necessary operating expenses.'
By Chapter 1256, Session Laws of 1955, the General Assembly provided:
* * *
'A county or city board of education may incur liability pursuant to this Act only with respect to a claim arising after such board of education has procured liability insurance pursuant to this Act and during the time when such insurance is in force.'
The foregoing provisions became effective on May 25, 1955. The claimant's injury occurred on May 11, 1955. We must determine the liability as of the date the injury occurred. Tucker v. North Carolina State Highway Commission, 247 N.C. 171, 100 S.E.2d 514. We conclude the Gastonia City Board of Education was not liable for the tort of its employee, Houston D. Tolbert, on May 11, 1955, because on that date the Board and its predecessors, the trustees, retained governmental immunity. The Act lifting the immunity, in its nature, was not retroactive. The waiver was conditioned on the Board's obtaining liability insurance, which necessarily would be prospective in order to be within the period of coverage. We do not pass on the question whether, after obtaining insurance, a claim for damages for an employee's negligence may be maintained by a claim before the North Carolina Industrial Commission or whether by an action in the superior court.
At the time of claimant's injury, the county boards of education, by G.S. §§ 115-54, 55, and 56, and city boards, by G.S § 115-8, were given general control and supervision of all matters pertaining to the public schools in their respective units, except as to such matters as the law assigned to the State Board of Education or other authorized agency. The duty of selecting janitors was not so assigned and consequently remained with the local boards. See generally, Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; Coggins v. Board of Education, 223 N.C. 763, 28 S.E.2d 527; Key v. Board of Education, 170 N.C. 123, 86 S.E. 1002. It would be unrealistic, indeed, to conclude the county boards of education and city trustees did not have the authority to select, hire, direct, and supervise those selected to care for the school buildings and grounds within their jurisdiction on May 11, 1955. Lack of such power would be entirely inconsistent with the duties assigned to these units both before and after the changes made by the Act effective May 25, 1955. That Act made no substantial change in the budgetary methods or in plant and grounds maintenance and management. Coggins v. Board of Education, supra.
The General Assembly created the State Board of Education and fixed its duties. It is an agency of the State with statewide application. The General Assembly likewise created the county and city boards and fixed their duties which are altogether local. The Tort Claims Act, applicable to the State Board of Education and to the State departments and agencies, does not include local units such as county and city boards of education.
The parties admit that Houston D. Tolbert was employed by the Gastonia City Board of Education to do maintenance work on the city school grounds. Is he, thereby, an employee of the State? The question was not decided in Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854.
Tort claims may be filed before the Industrial Commission against 'the State Board of Education, State Highway & Public Works Commission, and all other departments, institutions, and agencies of the State.' Claims for tort liability are allowed...
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