Warburton v. City of Quincy

• Decision Date: 26 May 1941
• Citation: 34 N.E.2d 661,309 Mass. 111
• Parties: WARBURTON v. CITY OF QUINCY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 111

34 N.E.2d 661

WARBURTON

v.CITY OF QUINCY.

Supreme Judicial Court of Massachusetts, Norfolk.

May 26, 1941.

Exceptions from Superior Court, Norfolk County; Broadhurst, Judge.

Action by Mabel Warburton against the City of Quincy for personal injuries. A judge of the Superior Court, sitting without a jury, found for plaintiff in the sum of $1,200 and defendant brings exceptions.

Exceptions sustained and judgment for defendant.

Argued before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

Hammer, Karff & Goldberg, S. V. Weymouth, and B. Fishgal, all of Boston, for plaintiff.

J. D. Smith, City Sol., of Quincy, for defendant.

COX, Justice.

A judge of the Superior Court, sitting without jury, found for the plaintiff, who was injured by reason of a defect in the walk or path on the grounds of a school building owned by the defendant. The defendant's exceptions are to the denial of four requests for rulings. The findings of the trial judge are incorporated in the bill of exceptions as a ‘sufficient’ statement of the case.

The method of government of the defendant is what is known as Plan A. See G.L.(Ter.Ed.) c. 43, §§ 46-55, inclusive, as amended. Provisions relating to the school committee are found in other sections of said chapter. Section 33 provides that the school committee, in addition to the powers and duties conferred and imposed by law upon it, shall have control of all school buildings and grounds connected therewith. G.L.(Ter.Ed.) c. 71, § 68, as inserted by St.1934, c. 97, requires towns to provide and maintain a sufficient number of schoolhouses, and provides, among other things, that the school committee, unless the town otherwise directs, shall have general charge and superintendence of the schoolhouses. See Day v. Greenfield, 234 Mass. 31, 124 N.E. 481. Section 71 of said c. 71, in force at the time of the plaintiff's injuries (see now St.1935, c. 193), provided as follows: ‘For the purpose of promoting the usefulness of public school property the school committee of any town may conduct such educational and recreational activities in or upon school property under its control, and, subject to such regulations as it may establish, and, consistently and without interference with the use of the premises for school purposes, shall allow the use thereof by individuals and associations for such educational, recreational, social, civic, philanthropic and like purposes as it deems for the interest of the community. The use of such property as a place of assemblage for citizens to hear candidates for public office shall be considered a civic purpose within the meaning off this section. This section shall not apply to Boston.’

In December, 1927, the school committee of the defendant ‘acting under statutory authority and assuming that the power given by said section 71 to establish regulations enabled it so to do’ adopted regulations entitled ‘Rental of school halls and gymnasiums,’ and authorized the superintendent of schools to let such buildings in accordance therewith. These regulations fixed a charge for the use of the hall and gymnasium upon the premises where the plaintiff was injured, and in accordance with them, except that apparently the rate had been reduced in the meantime, they were let to a local lodge of a fraternal organization for the presentation of a minstrel show on three evenings in March, 1935. The amount charged, $52.50, which also included lighting and janitor service, was paid by check to the order of the school committee and delivered to the city treasurer, who indorsed it in the name of the defendant and deposited it to the defendant's credit. Tickets for the show were sold by the lodge.

The judge ruled that the school committee was in charge of the school buindings and grounds, and of any repairs thereto. He denied as inapplicable to the facts found request numbered 4, that the defendant is not liable for torts of the school committee or its employees, as the school committee are public officers. Request numbered 3, that the school committee are public officers and not employees, agents or servants of the city he granted ‘as a general proposition of law, but . . . [he ruled] that where, as here, the school committee voluntarily enter upon a permitted function which redounds to the profit or corporate benefit of the municipality, they act as municipal agents.’ As to request numbered 1, that the use of the school house was a lawful use under G.L.(Ter.Ed.) c. 71, § 71, he stated: ‘Construing the word ‘use’ in this request to mean the rental of parts of the school building to a fraternal order for the purpose described, I will assume that such use was lawful under the statute, but I rule that although section 71 permits, it does not require that rental be charged for the use of any part of a school building.' Request numbered 2, that the rental charge by the committee did not affect the dominating public character of the operation of the building and did not render the defendant liable for the torts of public officers in performing such public duty, was denied because the judge found ‘that the rental charge exceeded that insignificant incidental revenue which would not have affected the otherwise ‘dominating public character of the operation of the building’ and transformed the public function of promoting the usefulness of a public school by allowing its use for recreational or social purposes into a quasi commercial enterprise.'

It is settled that a school committee is a board of public officers whose duties are prescribed by statute, and, in the execution of its duties, the members act not as agents of the municipality but as public officers, Hill v. Boston, 122 Mass. 344, 23 Am.Rep. 332;McKenna v. Kimball, 145 Mass. 555, 14 N.E. 789;Day v. Greenfield, 234 Mass. 31, 124 N.E. 481; see Morse v. Ashley, 193 Mass. 294, 296, 79 N.E. 481, and the plaintiff concedes that the school committee, in carrying out the provisions of said § 71 with regard to the use of school property by individuals and associations, act as public officers if no pecuniary consideration is involved. She contends, however, that the defendant is liable, not because the committee exercised a permissive right to charge a rental, but because (1) the rental fee was more than incidental, (2) the defendant benefited directly from it, and (3) the substantial fee constituted an enforced contribution from the individual particularly benefited.

St.1911, c. 367, which appears to be the first legislative act in relation to the use of school buildings for the purposes described in § 71 of said c. 71, provided, in substance, that the school committee ‘may’ grant the temporary use of halls in school buildings ‘upon such terms and conditions' and for such public or educational purposes, ‘for which no admission fee is charged,’ as the school committee may deem wise. By St.1912, c. 320, the law was amended, so far as here material, by inserting for the above quoted word ‘may’ the word ‘shall,’ by making it apply to the use of rooms as well as halls, and by striking out the words ‘for which no admission fee is charged.’ The use which the committee was now required to grant was still to be ‘upon such terms and conditions' as they ‘may deem wise.’ St.1913, c. 391, put back into the law the provision that no admission fee should be charged, and changed the phraseology to...