Walter v. Everett School Dist. No. 24

• Decision Date: 23 May 1938
• Docket Number: 26867.
• Citation: 79 P.2d 689,195 Wash. 45
• Parties: WALTER v. EVERETT SCHOOL DIST. No. 24.
• Court: Washington Supreme Court

79 P.2d 689

195 Wash. 45

WALTER v. EVERETT SCHOOL DIST. No. 24.

No. 26867.

Supreme Court of Washington

May 23, 1938

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Leonard A. Walter against Everett School District No. 24 a municipal corporation, for injuries sustained as a result of the alleged negligent conduct of a tumbling instructor conducting classes in defendant's school building after school hours. From a judgment for the plaintiff, defendant appeals. Plaintiff having died after trial of the case, Annie F. Walter as administratrix of the estate of Leonard A Walter, deceased, was substituted as plaintiff.

Reversed.

Ralph S. Pierce, Edwin J. Cummins, and Gordon H. Sweany, all of Seattle, for appellant.

J. L Rucker and Henry M. Jackson, both of Everett, for respondent.

ROBINSON Justice.

Leonard A. Walter, a ten year old boy, brought this action to recover damages for personal injuries sustained as a result of the alleged negligent conduct of one Ben Perry. From causes not connected with these injuries, Leonard died subsequent to the trial of the case, and Annie F. Walter, his mother and the administratrix of his estate, has been substituted as respondent.

Ben Perry was employed by the Works Progress Administration, an agency of the federal government, to teach boys the art of tumbling. At the time of the accident, he was conducting a class in a basement room of the Garfield grade school building in Everett, which the directors of appellant school district had given him permission to use. In the course of instructing Leonard Walter in executing a simple 'flip', Mr. Perry tossed him into the air, and Leonard landed improperly and broke his leg. The jury found that Perry's conduct was negligent, and for the purposes of this appeal we must assume that as to that the jury was correct.

The trial court instructed the jury that the school district was responsible for the negligence of Perry, if any. Upon this appeal, appellant contends that it was not only not responsible, as a matter of law, but also that there were not even sufficient facts to warrant the submission of the issue of its responsibility to the jury.

As disclosed by the record, the facts are as follows: Perry was employed by the W. P. A. to give tumbling lessons. In the autumn of 1935, he secured from the school board of appellant district, and from Mr. Love, principal of the Garfield school, permission to conduct his classes in a basement room. Mr. Love also agreed to announce to his pupils that such classes would be held in the school building. Apparently, similar classes in sewing, dancing, and dramatics were also being given by the W. P. A. instructors, and Mr. Love issued an announcement of all of these classes by means of printed notices which the pupils carried home to their parents. The parents were asked to sign 'the tumbling notice and any notice that affected the children possibly,' and to have the pupils return such signed notices to the W. P. A. instructor. The classes were held once a week in the afternoon after school hours. When Leonard brought the notice home, his parents refused to let him take tumbling, and he did not take it that year.

In September of the next year, Perry again asked Mr. Love if he could use the school for his tumbling class. After conferring with the school superintendent, Mr. Love gave his permission. This time Mr. Love simply told his teachers to announce that the W. P. A. classes would be continued. Somewhat later Mr. Love came around to the school rooms and told the pupils that the tumbling class was not full and that anyone who wanted to take tumbling could do so, but he should get his parents' consent. Leonard attended one session of the class. When he told his parents what he had done, they told him not to attend again. Nevertheless, he did attend the next class and suffered the injury complained of.

Perry was not hired by the appellant school district. He was employed and paid by the W. P. A. Neither the teachers nor Mr. Love were regularly present at his classes, and they made no attempt to direct or control them. Respondent does not contend that Perry was an incompetent or habitually careless instructor; nor that the room and equipment were in any way defective; nor that there was any negligence on the part of Mr. Love or any of the teachers. Respondent's position was simply that Perry was negligent, and that appellant is responsible for Perry's negligence.

The liability of one person for the acts or omissions of another is the exception rather than the rule, and the person who asserts such liability must establish the fact that some connection exists between the actor and the person whom he seeks to hold responsible for the actor's conduct. Accordingly, the inquiry must be directed to the relationship that existed between Perry and the appellant, and whether or not that connection was sufficient to make appellant liable for Perry's negligence. We are of the opinion that the connection was, as a matter of law, insufficient to be a basis for appellant's liability.

In this state, a school district is liable for the negligent acts or omissions of its officers or agents acting within the scope of their authority. Morris v. Union High School District A, 160 Wash. 121, 294 P. 998.

It is apparent that Perry was not an officer of appellant school district. We think it also clear that he was neither its agent nor its servant.

'Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' American Law Institute Restatement of Agency, § 1.

'The proper criterion by which to determine whether in a given case the relation of master and servant exists is found in the right of the master to order and control the...