*1 assignments are made and There plaintiff’s briefs
arguments advanced in support feel
filed thereof separate treatment.
deserving of Suffice say matters have been that all such con- and found be without substantial
sidered
merit. no reversible error being There record, trial court’s
affirmed.
Judgment affirmed. PRADE, J., WINDES,
LA C. STRUCKMEYER, JJ.,
PHELPS
concur.
Edward his Sawaya,
litem, and Edward Edward Appellants,
Sawaya,
TUCSON HIGH SCHOOL DISTRICT NO. COUNTY, Arizona, Appellee.
OF PIMA
No. 5860.
Supreme Court Arizona.
March 1955.
Rehearing April 12, Denied including game the football
witnessing plaintiff paid an admission fee. complaint alleges that de- further High District had fendant Tucson railing on the east negligently allowed *2 fall into grandstand near the south end to disrepair in so that remain a state of and it, dаngerous, and that defendant became prior long for a time thereto had known disrepair in railing such that said was danger. a condition of that constituted Tucson, appellants. Barry, for Cole & proximate negli- result of the That as Spaid, Robertson, Holesapple & Darnell, permitting in rail- gence of defendant such Tucson, appellee. disrepair in become remain thе ing to Sawaya, Jr., fell from plaintiff Edward
PHELPS, Justice.' ground and sus- grandstand to said inju- painful personal judgment of serious and tained appeal an from This is ries, tem- wit, spine causing entered to a fractured Superior Court County the Pima disability permanent par- porary cause total of said dismissal upon order of heavy disability to incur requiring him com- tial ground upon the of action expense upоn which sustain loss of medical to claim state a plaint failed to wages. granted. could be relief complaint alleges Septem- on plaintiff Upon appeal to court this 19, 1952, Sawaya, Jr., Edward attended
ber presented only assignment one of error has Amphitheatre game between a football follows: reads as which Tucson, and High located at Mesa School “Thе lower court erred render- School, played at which was the sta- High for defendant ing judgment on de- District, High Tucson School dium of to dismiss for the fendant’s motion particular night On this appellee herein. following reasons: District had leased High School Tucson liability “1. All of the elements game for the sum of the stadium complaint; plaintiff’s alleged paid by therefor was The rental $300. upon ground which High District. Thе “2. The said mo- Amphitheatre e., based, was i. school district im- involved constitute three tion school liability munity from for torts is Those ad- separate and distinct entities. applicable pleaded the facts under for the to the stadium mitted at the exercise of function in his acting the defendant was since time the com- tort to been alleged was capacity; and They jus- mitted and injury sustained. immunity is The said rule of “3. tify change refusal to the rule spirit contrary of the laws to ground law that under the common pol- Arizona, against State there liability was against for tort legislative required by is not icy, and in the absence of statute authority.” constitutional creating liability such and that therefore in this case we arriving at a decision question legislative judicial. and not all materi- to consider as true are bound A few of the cases to this effect are Lovell complaint. The sole allegations al County, v. School District No. Coos is whether here question determined to be Or. Krutili Board of the circumstances district under a school District, Education of Butler 99 W.Va. from immune case is of this 466, 129 many 486. There are S.E. failing school district the torts jurisdictions pro- make which the same safe for the reрair keep the stadium They nouncement. cling rule not- this public. use of the withstanding the fact that in the British Empire nonliability of school districts for *3 weight of au great believe the We their torts longer obtains. See 160 district a that is thority to be the p. 84, A.L.R. annotation II (f), School Tort as a corporation gov acts quasi-public Liability and cases cited under Note 14 the sole of agency for ernmental thereof. Steveson v. Toronto Board of ad facilities and furnishing educational Education, 146, 46 Ont.L.R. 673; 49 D.L.R. system public educational ministering the Renwick v. Vermillion Center School Dis- liable hence is not for the of the trict, 3 291, Alberta L.R. and many others. officers, agents, its or em of negligence have held in the We so case of ployees. escape To the harshness of the rule of Rivera, 48 30 Ariz. v. District School immunity states, governmental three New 609, 45 762. The A.L.R. case of 1, P. York, Washington California, Independent School District No. Bang creating enacted statutes for tort County, 454, 177 Minn. Louis St. 27 of though tort was even the in the committed 449, many jurisdic cites cases from N.W. a exercise of function. adhering to this view. tions taking that even Other courts view merely a a though county subdivision Many sustaining the decisions of pri- of the аctivities which are of nonliability that it is a harsh admit rule of at times ex- marily governmental, do simply give a reason for sus- but one proprietary functions private and was ercise in the that the school taining it it, by amounts- immunity or when the tort from lia sumed which in loss of result ” property.’ appropriation bility. to an Among these cases are Coburn v. County, C.C., Han 75 F. San Mateo proceeds then to statе that: court 313, County, de nan 62 Mo. v. St. Louis recognize courts that “Some do not county where a was cided in 1876 held that county performs a proprietary ever mains pipe a from the water laying water functions, authority weight but the main nearby city asylum, an insane of a ” * * * is otherwise. county, in the tained the defendant was proprietary function and exercise of a In the case of Rhoades v. Dis- Hen in the case of therefore liable. And 9, County, trict No. Roosevelt Mont. County, 124, Idaho Twin Falls derson v. 352, 890, 1, denying P.2d 160 A.L.R. 1151, 597, it held 101 A.L.R. was 50 P.2d recovery injuries paying sustained a county authority under that where had a spectator attending game while a basketball hospital the care build a statute to gymnasium opinion at dissenting pay reception of poor allowing written by criticising Erickson Justice therein, mаintaining such patients adherence nonliability to the doctrine of acting in a institution it was upon the ground that upon it was based injuries suf capacity liable for and was right divine kings who could do no result of complainant fered wrong, worthy study. In the case the case nurse. In negligence of a Bingham v. Board of Ogden Education of County, 112 Mont. Jacoby v. Chouteau City, 118 Utah 223 P.2d decided 1068, 1070, that held it 1950 in which the opinion adhered damages for tort county was liable for upon to the doctrine based right divine ferry for use of operating a where it was kings that the king can wrong, do no a river crossing general very wrote a Wolfe strong dissent- Justice proprie acting in that was reason opinion which ing should influence the the trial capacity. tary courts United States in breaking awarding damages was sustained. сourt away from a doctrine theory based C.J.S., quotes from 20 Coun case it which is as much joint out of with the ties, as follows: § as the theory times flat. earth is “ hand, county, if ‘On the other Abraham Lincoln stated more than a cen- *4 torts suit, for its to liable amenable is tury ago that government- acting, is not as when it “It duty as much the govern- of private corporation, agent, but as
al proper ment justice to rеnder against per- proprietary capacity, or is ainor itself, citizens, in favor of its as to ad- imposed special it duties on forming consent, voluntarily as- its or minister the private with same between in- desire, all they any Trial, time, may and as Vol. Belli Modern dividuals.” subjects questions in their which, and 40, p. section may appertain to the educa- judgment, book text We believe that tional, eсonomic, and political, artistic doc- writers are of the view such moral citizens interests of the country application trine in this has no they respective in which communities especially the rea- in view fact that of the ” * * reside; perpetu- sons assigned the courts for its longer ation to be no exist. This seems portion 54-416, supra, This of section we especially liability true sincе insurance construe to authorize the board of educa- its sub- government available to to tion to purposes lease stadium for the protection persons who divisions reaching for which this it was leased. may injured become a result tort as conclusion we do not to under- wish be officer, employee agent committed stood as overruling any degree case govеrnment. Community Hospital Prescott Commis- sion v. Prescott School District In view of the above observa Yavapai County, 57 Ariz. tions certainly we are to ex inclined cursory 160. A examination of that case govern tend nonliability the doctrine of clearly will distinguish it from instant any mental subdivisions further than case. leasing We hold that in the stadium required 54-416, to do. A.C.A. Section compensation and receiving therefor 1939, sets the powers forth duties the school district was in the of a exercise the boards of trustees of school districts. that in function and the exer- provides Subsection thereof that: cise thereof it was in- liable for may permit use, “The board un- juries sustained as a negli- result of its direction, der subject such gence the maintenance of said stadium. conditions, regulations rules and hardship The above rule will result may prescribe, house school diverting district trust funds or houses within the district a civic which otherwise would used be for educa- district, center for such where purposes tional for the reason that school citizens, parent association, teachers’ protect may against themselves Camp Boy girls, troops, Fire Scout such as above indicated. clubs and associations rec- formed for reational, educational, political, econ- of the trial court is re- omic, artistic or moral activities of and the cause remanded in- versed with may engage supervised vacate its order dismissing structions to complaint plaintiff’s recreational activities and and that com- where said may discuss, plaint meet from time to be reinstated.
894 PRADE, 473, 133 A.L.R. J.,
LA and UDALL and 166 C. Or. P.2d STRUCKMEYER, JJ., In thаt court said: concur. 1207. case the how- agreed,
“The are authorities WINDES, (dissenting). by ever, undertaking that when the Justice promotion of its city is not for the majority agree I am with the unable corporate private as a own interests opinion for the reason that believe the I good, such entity public but for the upon assumption. A is 'based an erroneous undertaking governmental.” judicial only decision is as sound as the assumptions upon which it is founded. applying In to a school this doctrine district, kept that school it must in mind be majority The decision of the is bottomed quasi- municipal are but are not assumption upon appellee the incorrect that a public corporations that there is proprietary engaged in a school district was municipal recognizеd between a distinction for the reason that under function corporation A mu- and a district. 54-416, provisions of section subsection function, nicipal corporation a has dual A.C.A.1939, charge per- it made a private proprietary governmental. or its facilities mitting use of McQuillin, Municipal Corporations, sec- purposes allowed in said section. If limited public A has a tion 53.23. school district unsound, assumption be this only, function that of education. Prescott legally opinion is warranted. not Community Hospital Pres- Commission v. majority have invoked familiar Yavapai cott District municipalities acting private rule County, Ariz. capacity protected proprietary are not or only general rule is that school districts act immunity. I am by the doctrine of governmental capacity not and are prepared say the legislature not expressly unless authorized stat- liable might properly enact a law that would establishment mainte- ute, since the against call for the invocation this rule governmental nance of is a func- schools legis- but there is no such school districts McQuillin, Municipal Corpora- tion. lation Arizona. tions, 53-05 and sections 53.93. authority foregоing rule is well keep astray being led in deter- To from phrased: activity mining whether an governmental, immunity we must the test that use “The from corporations use which is that if the under- quasi-public generally all courts municipal corporation is for taking placed ground of their invol- public untary public good, They is a character. are City Portland, undertaking. usually Wold agen- treated as or state It is townshiрs. ordinarily are counties and cies, are and their duties subdivi- that where well established They exercise wholly governmental. solely organized of the state are sions part functions greater law, by general public purpose, merely, agencies them for against action lies that no public policy, purposes of created for on ac- injury person received *6 genеral rule and hence the officers the negligence of of count the of responsible neglect the are for not subdivision, right a unless of such them, the unless of enjoined duties on statute. by given is expressly action by statute.” given action counties, then, as Such subdivisions principles announced the same We have corporations, townships, school District the School for state of Arizоna. government, of are instrumentalities 609, 1, Rivera, Ariz. P. 243 by the authority given and exercise Community 45 A.L.R. Prescott the state, for more liable and are no Hospital School v. Prescott Commission than acts or officers omissions ” supra. Yavapai County, 1No. . supplied.) District (Emphasis the state.’ case, supra, adopted the In the Rivera same the In the case on distinction between as in Indiana Freel v. School rule stated municipal corpora- school district and Crawfordsville, 27, City 41 N.E. 142 Ind. tion, we stated: 301, 312, 37 L.R.A. as follows: “That there is a difference between “ involuntary corpora- ‘They are ordinary school district and a tions, purpose organized not for municipal corporation, and that profit gain solely but or for purely former is agency as the benefit, public only such not, lаtter is be cannot doubted.” powers as were neces- limited deemed light rules, In the of these which are corpora- sary purpose. for that Such unquestionably Arizona, the law in if the state, agents are but the of the tions charge collection of the herein was for administering sole for promotion public of the function for public system education. created, which the schоol are * * * re- performing duties acting district cannot be said to have been merely quired them exercise they proprietary private capacity or public agency function for making charge. such public good which receive for superficial reading A statute corporate private or benefit. clearly only purpose shows of it therefore, corporations, allow, permit the board to is to under respect the same law governed subject direction and to such conditions to individuals for to their may prescribe, agents of their officers use negligence school facilities as a civic center benefit Detroit, 212, cation of 3 N.W.2d Mich. parent- organizations case, various such supra In the Mokovich [177 associations, Boy teachers Scouts or other 294], Minn. N.W. the court said: recreational, polit- associations formed for being “The charge fact of such ical, economical, artistic, or moral activi- appear made would sufficient ties. The authorized use is limited to take the district out of its educational public, purposes. educational and cultural activity functions and convert its into permitted promote use here was to one of a business or char- the athletic or educational interests of two may acter. make School districts in- districts, other clearly school an authorized charges purposes. cidental for other public use. They may charge and receive tuition pupils, buy non-resident and sell by appellee charge made bоoks, school receive rent author- private not for the benefit of the district. ized buildings, uses and make go It must into the school fund and cannot charges. incidental If fact any purpose expended be the district for that such incidental charges are made except chapter educational. Laws district, places liability upon the then 54-617, Supp. section section nonliability largely disap- the rule of receipts this statute all A.C.A. 1939. Under *7 pears.” (Emphasis supplied.) rentals, operation whether from of cafe any go terias or other' sources must into Michigan court set forth in the John- county treasury spent and be in the case, 465, supra son Mich. N.W. [253 any other school funds. manner as This 223], approved and in the Daszkiewicz from authorized revenue is derived case, supra, the rule as follows: activity public only and can be used purposes. phase may The district board “On this educational case municipal corpor- its only out function as an also be noted carrying is education, governmental in and promoting agen- ations other agency of purely only purpose performing gov- for which it was cies when organ a school ernmental function do not lose their fact makes in ized. The immunity liability negli- charges for various activities from for its does cidental performance enterprise. merely gent it into business because not convert therefrom, Independent they pro- an income School District derive v. Mokovich 446, 292; 22, only N.W. vided income is incidental 177 Minn. functioning Board Road Com’rs main so v. Johnson covering the County, 253 Mich. at cost Ontonagon aimed undertaking.” (Emphasis supplied.) Board of Edu Daszkiewicz v. N.W. up expressions of sound, space is taken opinion Much majority he If the immunity disapproval the law of state as are liable agencies all of its (cid:127)state capacity. acting governmental It activities when in a having engaged ex- any every is the law in this and other state source from revenues collect when cept where waived statute. Whether use the same taxation than agree with the functions. wisdom of a law should governmental carrying out opin- majority not influence a decision. As stated one expressed in A desire jurists, most able the late Judge of state our doctrine extend ion not to Baker, extending question when this first was sub- immunity. a question It not duty “It non-liability. The mitted to court: is our to de- doctrine of it, it, It is a clare law we find opposite effect. to make has the decision and even in with our upon the state accord own desires or imposing question of Sharp, committed wishes.” State v. Ariz. acts agencies P. function. 633. performing when provides, without distinction The statute of the lower court should source, income be that this class be affirmed. income of with all other
сombined e., purposes, i. for the same used There our schools. maintenance of distinguished
possibility that the district as
any private benefit
derives
from
incidental revenue. Joseph WHITE, Doe, Roe, and John Richard Riggs Corporation Motors, Doe I such as our states have statutes Other Appellees. 54-416, supra. I have So far as section No. 5883. determine, all those which able to been Supreme Court of Arizona. ruled have passed the matter giving fee for charging March that a board public permission to the school use *8 merely performing govern facilities is Lincke Moline Board function. v.
mental Education, Ill.App. Warburton Quincy, City N.E.2d Mass.