Zoeller v. State Board of Agriculture

• Decision Date: 10 March 1915
• Parties: ZOELLER v. STATE BOARD OF AGRICULTURE.
• Court: Kentucky Court of Appeals

173 S.W. 1143

163 Ky. 446

ZOELLER v. STATE BOARD OF AGRICULTURE.

Court of Appeals of Kentucky.

March 10, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Loraine Zoeller, by her guardian, against the State Board of Agriculture and another. From a judgment sustaining a demurrer of the State Board of Agriculture to the petition and dismissing the petition so far as it sought recovery against the board, plaintiff appeals. Affirmed.

Henry W. Sanders, of Louisville, for appellant.

A. J Carroll, of Louisville, for appellee.

HURT J.

The appellant, Loraine Zoeller, is an infant, five years of age and sues by her guardian. The State Board of Agriculture is the appellee, and Rudolph Berliner was made a codefendant with the State Board of Agriculture. The appellant, in her petition and amended petitions, alleges that the State Board of Agriculture is a corporation, created by an act of the General Assembly of the state of Kentucky, and that it has power to sue and be sued, contract and be contracted with and possesses all the immunities, rights, and privileges, and franchises usually attached to a corporate body, and has power to conduct a yearly public exhibition, known as the Kentucky State Fair, on its grounds at Louisville, Ky. and that on September 16, 1913, it was engaged in conducting the fair, and while the appellant was in the company of her father and mother, upon one of the public ways in the fair grounds, provided for the use of the pedestrians, a horse ridden by a mounted musician broke away from under control, and ran over the appellant, whereby she was struck with great and sudden force, crushed to the ground, trampled upon, bruised and crushed about the head, and her collar bone broken. This mounted musician was one of the servants of Rudolph Berliner, who was under contract with the State Board of Agriculture to furnish music for the purposes of the exhibition and for the benefit of the crowd present. It was further alleged that the horse was insufficiently broken to be used or brought into the fair grounds, where great numbers of people were congregating, and was a wild and vicious animal, and that the musician who was mounted upon the horse was incompetent, and unskillful, and incapable of controlling the horse, and that these facts were known to the appellee and its codefendant, or by the exercise of ordinary care could have been known to them, and that the injury she received was the direct result of the concurrent negligence of the State Board of Agriculture and Berliner, their agents and servants. It was further alleged that the State Board of Agriculture was giving a public exhibition, known as the Kentucky State Fair, which exhibit consisted of various shows, attractions, bands of music, races, and other things to attract the public, to which an admission fee was charged, and the plaintiff attended the exhibition upon the general invitation extended to the public, and paid the admission fee upon entering, and was a patron of the exhibition. The appellant sought to recover damages for her injuries. To this petition and its amendments, the State Board of Agriculture offered a general demurrer. The demurrer was sustained, and, the appellant declining to plead further, her petition was dismissed so far as it sought a recovery against the State Board of Agriculture.

It is contended that the demurrer should have been sustained upon two grounds, one of which is that the State Board of Agriculture is a governmental agency, performing a governmental function for all the public, and is simply an arm of the government of the state, and for that reason cannot be made liable for the negligent, or even malicious, acts of its agents or servants. The other ground is that the defendant Berliner was an independent contractor, with whom the State Board of Agriculture had made a contract to furnish certain music for the exhibition, and had no control or choice of the servants of Berliner, and that Berliner only represented the will of the State Board of Agriculture, as to the final result of his work, and that it had no control over the means by which he accomplished same, and for that reason it was not responsible for any negligence of him or his employés, which resulted in the happening alleged in the petition.

As to the contention that Berliner was an independent contractor, the petition fails to show that he was such, and for that reason the demurrer upon that ground was not well taken.

It is an elementary principle of the law, however, that the state cannot be sued without its consent, neither can the state be sued for the negligent or malicious acts of any servant of any agencies of the state which perform governmental functions, nor can such agencies be sued for torts of its servants. The question for determination seems to be as to whether or not the State Board of Agriculture, in conducting the Kentucky State Fair, exercises a governmental function. If it does, it is then not liable for the torts of its officers, agents, or employés. If it does not exercise a governmental function, then it is liable for the torts of its officers and agents.

This court, in the case of Rhea, Treasurer, v. Newman, 153 Ky. 617, 156 S.W. 160, 44 L.R.A. (N. S.) 989, made use of the following language:

"The State Fair is one of the great institutions of the state. It was created for the purpose of improving and educating the people of the state along highly important lines, and no one will or can successfully contend that the State Fair is not one of the most important and essential adjuncts of the state government. * * * The State Fair is an established state institution, and, like its schools and its penal and charitable institutions, must be maintained by the state, if it is to live."

The State Fair is a public purpose, within the meaning of the Constitution, for which the money of the state may be appropriated by the Legislature. Ky. Live Stock Breeders' Ass'n v. Hager, 120 Ky. 133, 85 S.W. 738, 27 Ky. Law Rep. 518, 9 Ann.Cas. 50.

This court, in the case of Norman v. Board of Managers, 93 Ky. 537, 20 S.W. 901, 14 Ky. Law Rep. 529, 18 L.R.A. 556 held that it was a public purpose, for which the money of the state might be appropriated, to properly represent the resources of the state in a fair to be held outside of the state. The purpose of the holding of a State Fair is to enlighten and educate all the people of the state in regard to the more advanced methods of agriculture, forestry, growing of live stock, and poultry, and to educate the people as to the most profitable kind of live stock to be raised, and the most suitable crops in which to till the soil, and the most advanced methods of doing same. It cannot be...