McGraw v. Rural High School District No. 1

Supreme Court of Kansas

McGraw v. Rural High School District No. 1

243 P. 1038, 120 Kan. 413, 1926 Kan. LEXIS 393

CourtSupreme Court of Kansas

DecidedMarch 6, 1926

DocketNo. 26,260

StatusPublished

Cited by14 cases

This text of 243 P. 1038 (McGraw v. Rural High School District No. 1) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGraw v. Rural High School District No. 1, 243 P. 1038, 120 Kan. 413, 1926 Kan. LEXIS 393 (kan 1926).

Pincite

Opinion

The opinion of the court was delivered by

Burch, J.:

The action was one for damages for personal injuries sustained by plaintiff while employed as a laborer to assist in the construction by the district of a high-school building. The petition alleged the injuries were occasioned by defendant’s negligence. A demurrer to the petition was sustained, and plaintiff appeals.

The question presented is the old one of liability of a governmental agency for tort. It is contended the erection of the school building was not a governmental function, a distinction being made between providing school facilities and making use of provided facilities for educational purposes. It is further contended the peti[414]*414tion presents a case of liability under a specific contract, not a case of violated public duty, citing Williams v. Kearny County, 61 Kan. 708, 60 Pac. 1046. Finally and chiefly, it is contended that, since the district had authority to erect the building and to employ plaintiff to do the work in which, he was engaged when he was injured, the law of master and servant applies.

The school building was indispensable to keeping school, and providing the building for educational purposes was just as much a sovereign function as utilizing the building for educational purposes. The contract of employment contained no express covenant to return plaintiff to a status of good condition at expiration of his employment, and no implied covenant not to injure him, analogous to the covenants of the lease in the Williams case. While the contract of employment created the relation of master and servant, the relationship was not created for the private advantage of the incorporators of the school district, but to promote the general welfare through education of the young, a sovereign function to be exercised under immunity of the sovereign from tort liability.

If the doctrine of state immunity in tort survives by virtue of antiquity alone, is an historical anachronism, manifests an inefficient public policy, and works injustice to everybody concerned (Governmental Responsibility in Tort, by Edwin M. Borchard, 11 Am. Bar Assn. Jrl. 496, August 1925), the legislature should abrogate it. But the legislature must make the change in policy, not the courts.

The judgment of the district court is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the court was delivered by

Burch, J.:

The action was one for damages for personal injuries sustained by plaintiff while employed as a laborer to assist in the construction by the district of a high-school building. The petition alleged the injuries were occasioned by defendant’s negligence. A demurrer to the petition was sustained, and plaintiff appeals.

The question presented is the old one of liability of a governmental agency for tort. It is contended the erection of the school building was not a governmental function, a distinction being made between providing school facilities and making use of provided facilities for educational purposes. It is further contended the peti[414]*414tion presents a case of liability under a specific contract, not a case of violated public duty, citing Williams v. Kearny County, 61 Kan. 708, 60 Pac. 1046. Finally and chiefly, it is contended that, since the district had authority to erect the building and to employ plaintiff to do the work in which, he was engaged when he was injured, the law of master and servant applies.

The school building was indispensable to keeping school, and providing the building for educational purposes was just as much a sovereign function as utilizing the building for educational purposes. The contract of employment contained no express covenant to return plaintiff to a status of good condition at expiration of his employment, and no implied covenant not to injure him, analogous to the covenants of the lease in the Williams case. While the contract of employment created the relation of master and servant, the relationship was not created for the private advantage of the incorporators of the school district, but to promote the general welfare through education of the young, a sovereign function to be exercised under immunity of the sovereign from tort liability.

If the doctrine of state immunity in tort survives by virtue of antiquity alone, is an historical anachronism, manifests an inefficient public policy, and works injustice to everybody concerned (Governmental Responsibility in Tort, by Edwin M. Borchard, 11 Am. Bar Assn. Jrl. 496, August 1925), the legislature should abrogate it. But the legislature must make the change in policy, not the courts.

The judgment of the district court is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

243 P. 1038, 120 Kan. 413, 1926 Kan. LEXIS 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgraw-v-rural-high-school-district-no-1-kan-1926.

Opinion

Related

Cite This Page — Counsel Stack