Summary
Holding that statutory "may sue and be sued" provision does not authorize suit for negligence against a public corporation performing governmental functions. That provision pertains to other kinds of actions
Summary of this case from State ex Rel. New Liberty v. PrattOpinion
February 14, 1941.
1. CURATORS OF STATE UNIVERSITY: Public Corporations. The Board of Curators of the Missouri University is a public corporation.
The Missouri Constitution recognizes higher education as a governmental function and vests the government of the State University in a Board of Curators under the control of the State.
2. PUBLIC CORPORATIONS: Negligence. In the absence of express statutory provision, a public corporation or quasi corporation, performing governmental functions, is not liable in a suit for negligence.
3. PUBLIC CORPORATIONS: State University: Waiver. A statutory provision that a public corporation may sue and be sued does not authorize a suit against it for negligence.
The waiver by the State for itself or its officers or agents of immunity from an action is one thing and the waiver of immunity from the liability for the torts of the officers or agents of the State is quite another thing.
4. STATE UNIVERSITY: Public Corporations. An agency or arm of the State is entitled to the same immunity in performing its governmental functions as the State itself, in the absence of express statutory provisions to the contrary.
The immunity of public educational institutions from suits for negligence rests upon the public policy which has existed in this State from its beginning.
The funds of the State University whether raised by taxation, endowments or tuition fees, are dedicated to the beneficent purpose of education and it has no funds for the purpose of paying damages for tort nor is its property subject to execution for such purposes.
Courts should maintain such public policy until it is changed by positive legislative enactment.
A demurrer by the defendant properly raised the defense of immunity from the alleged cause of action for negligence.
Appeal from Boone Circuit Court. — Hon. W.M. Dinwiddie, Judge.
AFFIRMED.
E.E. Hairgrove, North T. Gentry and George F. Hollis for appellant.
(1) The petition is sufficient in form and substance. It is based on the violation of a statute by respondent that requires that all scaffolds for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon. R.S. 1929, sec. 13238. The falling of the scaffold is prima facie evidence of the negligent construction of it. Guthrie v. Gillispie, 6 461 S.W.2d 887; Prapolenis v. Const. Co., 279 Mo. 358. The violation of a statute is an act of negligence by the employer. Boll v. Glass Paint Co., 321 Mo. 105. (2) Respondent may argue to the court that it cannot be sued; but such question was not raised by its demurrer in the trial court; and it cannot be raised for the first time in this court. If respondent had intended to take advantage of an alleged privilege or alleged exemption, it should have set out the same in its demurrer; for only such questions as are raised by a demurrer can be considered by the court. "The demurrer shall distinctly specify the grounds of objection to the pleadings." R.S. 1929, sec. 771. The object of the statute was to sharply direct the trial court's mind to the precise ground of objection relied on by demurrant. Alnut v. Leper, 48 Mo. 321; McClure v. Phillips, 49 Mo. 316; Clark v. Grand Lodge, 43 S.W.2d 406; Jones v. McGonigle, 327 Mo. 468, 37 S.W.2d 892; Eads v. Gains, 58 Mo. App. 594; Clark v. King, 178 Mo. App. 386; Bliss on Code Plead. (2 Ed.), sec. 423a. But if the court cares to consider the new question raised by respondent's counsel, appellant's counsel respectfully refers the court to the statute which granted the charter to respondent. Said statute is as follows: "Section 1. A University is hereby instituted in this State, the government whereof shall be vested in a board of curators. Section 2. The University is hereby incorporated, and created a body politic, and shall be known by the name of `The Curators of the University of the State of Missouri,' and by that name shall have perpetual succession, power to sue and be sued, complain and defend in all courts of law and equity, to make and use a common seal, and to alter the same at pleasure, to take, purchase and hold, to sell, convey and otherwise dispose of lands and chattels." Laws 1839, p. 176. Following that statute, and especially the part that gave respondent power "to sue and be sued, complain and defend in all courts," numerous suits have been instituted by it, and numerous suits have been instituted against it, and our courts have recognized its right to sue and be sued. Head v. Curators of University, 47 Mo. 220; State v. Curators of University, 57 Mo. 178; State ex rel. Curators v. Halladay, 60 Mo. 596; McGuire v. Curators of University, 271 Mo. 359; State ex rel. Curators v. Walker, 240 Mo. 708; State ex rel. Heimberger v. Curators, 268 Mo. 598; Babb v. Curators of University, 40 Mo. App. 673; Niedermeyer v. Curators, 61 Mo. App. 654; Melek v. Curators, 213 Mo. App. 572; State ex rel. v. Canada, 344 Mo. 1238; The statute remained in that form for seventy years. R.S. 1845, p. 1034, sec. 2; R.S. 1855, p. 1498, sec. 2; G.S. 1865, p. 251, sec. 18; Wag. Stat. 1870, 1872, p. 1291, sec. 18; R.S. 1879, p. 1423, sec. 7230; R.S. 1889, sec. 8693; R.S. 1899, sec. 10466. In 1909 the statute was amended, and the name of the corporation was changed to "The Curators of the University of Missouri." And there was a further amendment of the statute which authorized said corporation "to condemn and appropriate real estate or other property, or any interest therein, for any public purpose, etc." Laws 1909, p. 885, sec. 2; R.S. 1909, sec. 11097. In 1919 there was a further amendment of the statute, which does not concern us, except that the authority of respondent "to sue and be sued, complain and defend in all courts," was retained in the amended statute. Laws 1919, p. 698, sec. 1097; R.S. 1919, sec. 11523; R.S. 1929, sec. 9626.
Lee-Carl Overstreet for respondent.
(1) The action of the trial court in sustaining respondent's demurrer was correct because respondent is a quasi corporation, public corporation, or instrumentality of the State of Missouri, and as such is not liable in actions ex delicto. Secs. 9625, 9626, R.S. 1929; Arts. 20, 21, 25, Chap. 57, R.S. 1929; Head v. Curators of Mo. University, 47 Mo. 220; Harris v. Compton Bond Mtg. Co., 244 Mo. 664, 149 S.W. 603; State v. Long, 278 Mo. 379, 213 S.W. 436; State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698; Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; Moxley v. Pike County, 276 Mo. 449, 208 S.W. 246; Lamar v. Bolivar Special Road Dist., 201 S.W. 890; Arnold v. Worth County Drain. Dist., 209 Mo. App. 220, 234 S.W. 439; State ex rel. Hausgen v. Allen, 298 Mo. 448, 250 S.W. 913; Greenwell v. Wills and Sons, 239 S.W. 578; D'Arcourt v. Little River Drain. Dist., 212 Mo. App. 610, 245 S.W. 394; Ritchie v. State Board of Agriculture, 217 Mo. App. 202, 260 S.W. 488; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Dick v. Board of Education of St. Louis, 238 S.W. 1073; Meadow Park Land Co. v. School Dist. of Kansas City, 301 Mo. 688, 257 S.W. 441; Krueger v. Board of Education of St. Louis, 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086; Robinson v. Washtenaw Circuit Judge, 228 Mich. 225, 199 N.W. 618. (2) The matter of higher education is a governmental function of the State of Missouri, in the performance of which function the Curators of the University of Missouri, as the agent of the State, is not liable in tort actions unless the Legislature specifically and positively waives immunity. Mo. Const., Art. XI, Secs. 5, 6, p. 147, R.S. 1929; Arts. 20, 21, 25, Chap. 57, R.S. 1929; Bush v. State Highway Comm., 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Comm., 48 S.W.2d 78; Manley v. State Highway Comm., 82 S.W.2d 619; Murtaugh v. St. Louis, 44 Mo. 479; Cassidy v. St. Joseph, 247 Mo. 197, 152 S.W. 306; Zummo v. Kansas City, 285 Mo. 222, 225 S.W. 934; Richardson v. Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A.L.R. 508; Secs. 3356, 5131, 8102, 9271, 9515, 9569, 9596, 9625, 9626, 9653, 12348, R.S. 1929; Laws 1937, pp. 449, 479, secs. 9325, 13557; Davie v. Board of Regents, University of California, 66 Cal.App. 693, 227 P. 243. (3) It is contrary to public policy to permit public educational or charitable funds to be subjected to the demands of those injured by the negligence of those administering such funds, and respondent is without authority to convert public educational funds in its hands to pay judgments arising from tort actions. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Meadow Park Land Co. v. School Dist. of Kansas City, 301 Mo. 688, 257 S.W. 441; Dick v. Board of Education of St. Louis, 238 S.W. 1073; Eads v. Y.W.C.A., 325 Mo. 577, 29 S.W.2d 701; Nicholas v. Evangelical Deaconess Home Hospital, 281 Mo. 182, 219 S.W. 643; Arts. 20, 21, 25, Chap. 57, R.S. 1929; Laws 1939, p. 62. (4) The provisions of Section 13238, Revised Statutes 1929, have no application to respondent, which is a public corporation, instrumentality or agency of the State of Missouri. Secs. 13238, 13241, R.S. 1929; Laws 1891, p. 159, secs. 19, 22; Minea v. St. Louis Cooperage Co., 175 Mo. App. 91, 157 S.W. 1006; Simpson v. Iron Works Co., 249 Mo. 376, 155 S.W. 810; Mo. Const., Art. IV, Sec. 28, p. 84, R.S. 1929; Williams v. Railroad Co., 233 Mo. 666, 136 S.W. 304; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1. (5) Respondent's demurrer upon the ground that appellant's amended petition did not state facts sufficient to constitute a cause of action was sufficiently specific to raise the question of respondent's non-liability for acts of negligence for the reason that appellant's petition, coupled with the doctrine of judicial notice, clearly discloses that respondent is not liable for acts of negligence. Morgan v. Bouse, 53 Mo. 219; Wilson v. Polk County, 112 Mo. 126, 20 S.W. 469; Troll v. Third Natl. Bank, 278 Mo. 74, 211 S.W. 545; Adams v. Stockton, 133 S.W.2d 687; Clark v. Grand Lodge, 328 Mo. 1084, 43 S.W.2d 404; Ruggles v. International Assn. of Iron Workers, 331 Mo. 20, 52 S.W.2d 860; Secs. 9625, 9626, R.S. 1929; Pipes v. Mo. Pac. Ry. Co., 267 Mo. 385, 184 S.W. 79; Brennan v. Cabanne Methodist Episcopal Church, 192 S.W. 982; State v. Long, 278 Mo. 379, 213 S.W. 436.
Plaintiff sued to recover for personal injuries alleging; that defendant is a corporation, created by law as an educational institution, with power to contract and sue and be sued; that it conducts the State University and has control of the campus and buildings thereon; that it employed plaintiff to make certain repairs on one of said buildings; that under the law it was the duty of defendant to furnish plaintiff a safe place to work; that defendant negligently furnished plaintiff an insecure scaffold (described) upon which to work; that said scaffold fell with plaintiff and he suffered certain injuries.
Defendant filed a demurrer stating "that it appears upon the face of plaintiff's amended petition that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant, Curators of the University of Missouri."
The court sustained the demurrer and plaintiff has appealed.
Appellant cites our statute and certain decisions on the allegations required to properly charge negligence in providing a defective scaffold. It is unnecessary to discuss them. This case must turn upon one point, to-wit: may this defendant be sued in tort for negligence; if not, does the demurrer properly raise this objection?
There is no doubt that this defendant has the right to sue and is liable to be sued in some kinds of action. That right and that liability are expressly provided by statute and said defendant has frequently sued and been sued in the courts of this State. Appellant cites a number of such cases, but none of them discusses the liability of this corporation to be sued for negligence. The cases cited by appellant on this branch of the case, with two exceptions, fall under the following classes; mandamus, injunction, suits on contract or to construe wills. The two exceptions are: Niedermeyer v. Curators, 61 Mo. App. 654, and Babb v. Curators, 40 Mo. App. 173. The Niedermeyer case seems to have been a suit for money had and received to recover alleged excess in tuition fees paid under protest. The Babb case was a suit for damages for discharge of sewage on plaintiff's land. The only issues discussed or decided were in reference to evidence or instructions.
The defendant, The Curators of the University of Missouri, is a public corporation. [Section 10783, Revised Statutes Missouri 1939 (Mo. Stat. Ann., sec. 9626, p. 7330); Head v. Curators, 47 Mo. 220; Harris v. Wm. R. Compton Bond Mortgage Co., 244 Mo. 664, l.c. 691, 149 S.W. 603; State v. Long, 278 Mo. 379, l.c. 384, 213 S.W. 436.]
Our Constitution recognizes higher education as a governmental function and vests the government of the State University in a Board of Curators under the control of the State. [Mo. Const., Art. XI, Sec. 5.]
In Head v. The Curators of the University of Missouri, 47 Mo. 220, on page 224, this court said: "The university is clearly a public institution, and not a private corporation. . . . The State established an institution of its own, and provided for its control and government, through its own agents and appointees." Again, on page 225; ". . . By establishing the university the State created an agency of its own, through which it proposed to accomplish certain educational objects. In fine, it created a public corporation for educational purposes — a State University."
In the absence of express statutory provision, a public corporation or quasi corporation, performing governmental functions, is not liable in a suit for negligence. [Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Dick v. Board of Education (Mo.), 238 S.W. 1073; Krueger v. Board of Education, 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086; Robinson v. Washtenaw, Circuit Judge, 228 Mich. 225, 199 N.W. 618; Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; Moxley v. Pike County, 276 Mo. 449, 208 S.W. 246; Lamar v. Bolivar Special Road District (Mo.), 201 S.W. 890; State ex rel. v. Allen, 298 Mo. 448, 250 S.W. 905; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Bush v. State Highway Commission, 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Commission (Mo. App.), 48 S.W.2d 78; Arnold v. Worth County Drainage District, 209 Mo. App. 220, 234 S.W. 349; D'Arcourt v. Little River Drainage Dist., 212 Mo. App. 610, 245 S.W. 394.]
A statutory provision that such a public corporation "may sue and be sued" does not authorize a suit against it for negligence. ". . . But the waiver by the State for itself or its officers or agents of immunity from an action is one thing. Waiver of immunity from liability for the torts of the officers or agents of the State is quite another thing." [Bush v. Highway Commission, 329 Mo. 843, l.c. 849, 46 S.W.2d 854. See also Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, and cases cited, supra.]
The cases heretofore cited are mainly based upon the principle that a public corporation, performing governmental functions, is an agency or arm of the State and entitled to the same immunity as the State itself, in the absence of express statutory provision to the contrary. Another reason for immunity of public educational institutions, not organized for profit, from suits for negligence rests upon the public policy which has existed in this State from its beginning. The funds of the State University, whether raised by taxation, endowments or tuition fees, are dedicated to the beneficent purpose of education. It has no funds, nor means of raising funds, for the purpose of paying damages for tort nor is its property subject to execution for such purpose. Courts should maintain such public policy unless and until it be changed by positive legislative enactment. [Cochran v. Wilson, 287 Mo. 210, l.c. 226, 227, 229 S.W. 1050; Dick v. Board of Education (Mo.), 238 S.W. 1073; Meadow Park Land Co. v. School District, 301 Mo. 688, 257 S.W. 441, 31 A.L.R. 343; Nicholas v. Evangelical Deaconess Home, 281 Mo. 182, 219 S.W. 643.]
We hold that the demurrer interposed by the defendant properly raised the defense of its immunity from the alleged cause of action stated in the petition. On its face, the petition shows the nature of defendant as a public educational corporation and seeks to recover damages for its alleged negligence.
The judgment is affirmed. All concur.