Plaintiff, a minor, sued the defendant school district, its superintendent, and a physical education instructor for alleged negligence, praying $35,000 in damages for his personal injuries. Each defendant filed a separate motion to dismiss for failure to state a claim on which relief could be granted. All three motions were sustained. Plaintiff filed his motion to amend the judgment or for a new trial, and therein stated, among othеr things, that the court erred in refusing to grant leave to amend. No request for leave to amend appears in the record and, though counsel argue here that an amendment should have been permitted, there is nothing before us on that point. The motion was overruled and plaintiff appealed in due course.
The appeal was originally heard in Division Two. An opinion was prepared which was not adopted and the case was thereafter transferred to Court en Banc. Additional briefs were filed and the cause was reargued and resubmitted. An opinion was thereafter prepared which was not adopted and the cause has recently been reassigned to the undersigned. Portions of the last-mentioned opinion are here adopted without the use of quotation marks.
The school involved was the South High School at Raytown. The injury was alleged to have been received in a wrestling class while plaintiff was practicing “holds and falls and other wrestling experiences.” The petition alleged, in substance, omitting essentially formal matters: that the State Department of Education had not ordered, suggested or recommended wrestling as a part of the physical education curriculum, but that defendants made it a required part thereof for the school year 1963-1964; that therein it was the duty of the defendants to “promote rules, regulations, instructions, teaching and supervision” to protect the students; that on January 24, 1964, plaintiff was engaged in that activity, as required, and that he had no knowledge of wrestling but relied on the defendants, and was injured. It was further alleged that defendants, jointly and severally, were negligent: (1) in failing to properly instruct plaintiff and in failing to “designate rules and regulations” for wrestling activities; (2) in failing to ascertain if plaintiff and his wrestling partner understood the “instructions so given,” the danger of injury, and the methods of protection; (3) that “defendants” were present and saw or could have seen that plaintiff was about to be injured and failed to warn him or stop the wrestling; (4) in failing to exercise “ordinary сare under the circumstances,” and in failing to “employ” proper instruction; .(5) in failing to “employ proper supervision,” and (6) in failing to perform their statutory duty “to select and employ a suitable and competent instructor.” As to the school district alone, plaintiff alleged that it failed to “select and employ a suitable and competent Superintendent of Schools to control the wrеstling and employment of competent teachers,” that it failed to eliminate wrestling from its curriculum and that it thus failed to comply with “the laws of the State.” It was further alleged that “as a direct and approximate result” of the claimed negligence plaintiff sustained an injury to his shoulder and to other specified parts of his body.
*53 The points made by plaintiff’s counsel, including- those in their original and supplementаl briefs, are: that the doctrine of sovereign immunity is archaic and it should be abolished; that defendants acted outside their legal and statutory powers; that an amendment of the petition should have been permitted; that the motions to dismiss should have been considered separately; that if any immunity be held to exist, the individual defendants do not share it; that the individual defendants are liable for their own acts, whether of misfeasance or nonfeasance; that it was the duty of the Superintendent to employ only “Totally Proficient” persons to instruct in an “unauthorized activity”; and, finally, that if the instructor Cradock was negligent then Herndon is also liable under the principles applicable to a master-servant relationship.
The case is briefed jointly for the defendants, but with differing issues. Counsel say, in essence, that the rule of sovereign immunity is fully effective, and that it protects the school district from all liability; that the individual defendants were performing governmental and discretionary functions and that they are not liable in actions for negligence; that the petition alleges, as to them, mere nonfeasance for which they would not be liable in any event; that they stood in the relation of loco parentis to the plaintiff, and for that reason are not liable for an unintentional tort.
Before reaching the points of ultimate controversy, we shall clear up a few others. The record made on the sustaining of each motion was that the motion to dismiss was sustained. This was not followed by an order that the cause was dismissed as to the respective defendant, which is certainly a more acceptable praсtice if that is what is really intended. However, as stated, no request for leave to amend is shown, and the plaintiff filed his motion to “Amend Judgment” or for a new trial, obviously regarding the order as a final judgment. That motion was overruled. Under the authorities the order now appealed from constituted a final, appealable judgment. Jones v. Williams,
Counsel for plaintiff insist that the inclusion of wrestling in the curriculum as a required сourse in physical education was outside of the defendants’ lawful authority. They cite nothing which so shows. Both sides go outside the record in dis-~ cussing supposed regulations and manuals of the State Department of Education. Section 163.250, RSMo 1959, cited by plaintiff, which was repealed, effective July 1, 1965, Laws 1963, p. 200, and replaced by § 161.102 Cum.Sup.1965, merely gives the Department authority to adopt rules and regulations for cоurses in physical education and to compile and promulgate a manual of physical education. The statute is permissive, not prohibitory, and we may not assume that the Department has prohibited courses in wrestling or that our schools would include such a course, if prohibited. Plaintiff merely pleads that the Department “does not order, suggest or recommend wrestling * * We find nothing to indicate that wrеstling was being taught “outside the powers and authority granted by statute” and we shall not further consider any such allegations as lending legal support to the plaintiff’s petition. If any regulation of the Department of Education actually prohibited wrestling, the regulation should have been pleaded specifically. The courts will not interfere with the exercise of a school district’s discretion except in а case of clear abuse, fraud, or some similar conduct. 78 C.J.S. Schools and School Districts § 99.
The theory that Cradock, the physical education instructor, was an employee of Herndon, the Superintendent, and that Herndon would be liable for his acts in a master-servant relationship, is wholly *54 fallacious. It is a matter of public knowledge, and we may say of judicial notice, that all teachers in the public schools are employees of the school district and are employed by it on contracts. See §§ 163.-080-163.100, RSMo 1959. The superintendent may presumably recommend, but he does not employ. He is neither the master nor the employer of any teacher. These conclusions also refute the allegations to the effect that Herndon failed to employ a suitable and competent instruсtor for wrestling.
Plaintiff’s counsel ask us to review the doctrine of sovereign immunity and to abolish it by judicial decree. As their principal authority they cite and quote from an article in Vol. 30, NACCA Law Journal, 1. c. 30, which in turn, cites three state cases, and two under the Federal Tort Claims Act. For more than a century the courts of Missouri have uniformly held generally that political subdivisions of the state are not subject to liability in suits for negligence. Reardon v. St. Louis County,
We are aware that the theory of gоvernmental immunity has been severely criticized, largely by text writers and in law review articles. Borchard, Government Liability in Tort, 34 Yale L.J. 1, 129, 229; 2 Harper & James, The Law of Torts, § 29.3, p. 1610; Prosser on Torts, 3rd Ed., Ch. 27, p. 1001 et seq.; 22 University of Chicago L.R. 610. It seems clear, however, that the principle of governmental immunity still prevails in the majority of states. With particular reference to schools and school districts see
We are inclined to agree with the statements made by the Supreme Court of Colorado in Tesone v. School District No. RE-2, in the County of Boulder,
We reach now the question of the liability of the defendant Herndon. We have already denied plaintiff’s contentions that Herndon as mаster was liable for any negligence of Cradock, the instructor, and that he was negligent in failing to employ a competent instructor. As applicable to Herndon, the petition alleges generally: that the defendants failed to properly instruct plaintiff, failed to ascertain if he understood the instructions given and the dangers involved, failed to employ “proper supervision,” failed to select and employ a competent instructor, failed to eliminate wrestling from the curriculum, and that defendants, though present at the time of the occurrence, failed to warn plaintiff or to stop the wrestling. No facts are alleged which would directly connect Hern-don in any way with a duty to instruct anyone in the wrestling course, to check on the plaintiff’s individual knowledge, or personally to supervise the activitiеs. And, he was not required to eliminate wrestling from the curriculum, for it is not shown to have been an unauthorized activity. The only remaining allegation is that the defendants, though present, failed to warn plaintiff of the dangers or to stop the wrestling. The facts thus alleged are insufficient to cast any such duty on Hern-don, especially in view of the fact that a presumably competent and certificated instructor had been emрloyed and was in charge. We hold that no cause of action was stated against Herndon, and no request for leave to amend being shown, the judgment of dismissal as to him was proper.
Finally, we will consider whether the court erred in sustaining the motion to dismiss filed by defendant Cradock, the physical education instructor. The allegations of the petition in regard to said defendant, summarized and consolidated, were that he (1) failed to properly instruct plaintiff in wrestling, (2) failed to “designate rules and regulations for such wrestling activities,” and (3) being present, saw, or by the exercise of ordinary care, could have seen that plaintiff was about to be injured and failed and neglected to warn him or to stop the wrestling, and thus avoid the injury to plaintiff.
We have concluded that the petition failed to allege sufficient faсts to state a claim for relief against Cradock. Our disposition of the case is such that we do not reach certain contentions briefed by said defendant, i. e., (1) that he was a “public officer clothed with discretionary powers and at all times engaged wholly in performing a governmental function and thus not liable for acts of mere negligence”; (2) that he is not liable to plaintiff for alleged negligеnt acts of omission constituting nonfeasance; and (3) that the relationship of loco parentis existed between him and plaintiff and he was accordingly not liable to plaintiff for an unintentional tort.
In considering the sufficiency of the petition we are mindful that “the averments are to be given a liberal construction and the petition accorded those
*56
reasonable inferences fairly indulgеd from the facts stated.” Royster v. Baker, Mo. Sup.,
Wrestling is one of the oldest and most universal of sports. It was a highly developed sport at lеast 3,000 years B. C. See Vol. 23 Encyclopedia Britannica, p. 804, 4th Edition. “It is common knowledge, and experience has shown, that competitive contests, athletic events and gymnasium exercises, like most other activities of life, have certain dangers' and hazards, and injuries are sustained therefrom on many occasions despite the use of necessary care, regulations and safety appliances. Wrestling is in this category. It is a form of sport or athletics in which many individuals of all ages voluntarily partake at one time or another, regardless of size, weight, supervision or equipment, and usually no liability attaches thereto.” Reynolds v. State of New York,
The allegation that Cradock was negligent in failing to properly instruct plaintiff and in failing to designate rules for wrestling activities are conclusions. There is nothing contained in those allegations which tend to show wherein those alleged omissions caused plaintiff to sustain injury or in what manner the performance of those acts would have prevented injury. Those allegations do not aid plaintiff in stating a claim for relief.
The allegation that Cradock saw, or in the exercise of ordinary care could have seen, that plaintiff was about to be injured, and failed to take preventive action, is unusual and has given us some difficulty. In determining the meaning and effect of that allegation we think it is important to consider that plaintiff was not engaged in a wrestling match. He alleged that at that time he was complying with the requirement “to participate with other students in a wrestling class and to practice certain holds and falls and other wrestling experiences.” We also consider it significant that plaintiff did not allege that his opponent wаs larger, stronger, or more skillful than he. It will be noted that there is no allegation as to the hold that was being used by plaintiff’s opponent or that such hold was dangerous or barred by any rules that may have been applicable to High School wrestling. In the absence of an allegation to the contrary it may be assumed that Cradock was not instructing plaintiff and his opponent in the use of holds which were known to be dangerous or were barred by any applicable rules.
It would be very difficult to see that a wrestler is about to be injured since the sport is one where the participants may re *57 lease a hold or a hold may be broken at any instant. The allegation under consideration is a conclusion. In order to place a duty on Cradock to take preventive action some fact should have been alleged which would have indicated that plaintiff was in danger of immediate specific injury. We also think that plaintiff should have alleged that after Cradock had knowledge that plaintiff was about to be injured there remained time in which he could have taken effective preventive action prior to the time plaintiff’s injury was sustained. If, for example, plaintiff had alleged that his opponent had a strangle hold on him; that Cradock had actual or constructive knowledge thereof and knew that such was a dangerous hold and if continued for a period of time would cause serious injury to plaintiff; that after acquiring such knowledge Cradock had time in which to warn plaintiff or to stop the wrestling prior to plaintiff’s injury and failed to do so— then we would say (with the qualification hereafter stated) that he had alleged a claim on which relief cоuld have been granted.
We have indicated that if plaintiff had made certain specific factual allegations he would have stated a claim for relief. That, of course, was stated without a consideration of the three special defenses defendant Cradock has briefed and which we have heretofore set out. It should be made clear that if there is merit in any of those defensеs plaintiff could not have stated a claim, in any event, under the general factual situation here involved.
For the reasons stated we rule that the allegation under consideration is not sufficient to state a claim for relief against Cradock. Furthermore, as we have indicated, the petition, when considered as a whole, fails to state such a claim and hence the court did not err in sustaining' Cra-dock’s motion to dismiss.
The judgment is affirmed as to all defendants.