School District v. Fuess

Mr. Justice Trunkey delivered the opinion of the court John Hendry contracted with the school district to furnish all the materials and perform all the work for the extraordinary repairs upon school building No. 7, instile!; compliance with the plans and specifications prepared by Henry Slienk, under the superintendence of said Slienk, or such other person as the district might designate. He undertook to do the work with reference to plans and specifications already' prepared, and agreed that he should not he entitled to pay for extra work or material, unless the same should be done or furnished on the written direction of the district indorsed on the contract. Possession was to — 605 — be delivered to him for commencement of the work, on July 3d 1875, at which time the house would be unoccupied. It was contemplated that possession would be given at an earlier date, if the building should be previously vacated, but the district neither delivered possession nor agreed that the work should be commenced before the time named in the contract. By agreement of same date, the district employed Shenk to superintend the work to be done by Iiendry, and devote all the time necessary to a careful and complete superintendence'of the same. His business was to see that Iiendry faithfully performed his agreement as the work progressed. He was not authorized to change or modify the contract in any particular. Nothing was committed to him other than-to superintend the work which was to be done ; he had made the plans and specifications which constituted a part of Hendry’s coutract; and -the allegation that “ Shenk was made the agent and superintendent of the school board, with full power to make the plans and specifications, and to begin and control the execution of the work for the board in all its details,” is gratuitous. The plan of the work was such as involved danger to the building. Ileudry commenced before he was authorized, and the result proved the prudence of the school board in fixing the date for commencement after the vacation of the schools. The testimony shows that the injury to the plaintiff was caused by gross, if not culpable negligence. Shenk was superintending the work, and some of the members of the board knew the work was being done, before the accident. In the instructions to the jury the court said : “ If the contractor, with the knowledge and assent of the superintendent appointed by the board, began the work before the time fixed in the agreement, and was permitted by him to carry on the work with the presence and knowledge of some of the members of the board, and the jury believe from the evidence that the plan and design of the work was in itself such as involved danger to the building, then the liability for injury resulting is not upon the contractor exclusively, but upon the school district.” That, we think, was error. Where the purpose of the contractor is lawful and the owner of the property may lawfully commit its improvement to others, if the owner employs a contractor to do the work and the latter is guilty of negligence in doing it, the contractor and not the employer is liable. A person is not liable for the acts of another, unless the relation of master and servant or principal and agent exists between them. When an injury is done by a party exercising an independent employment, the party employing him is not responsible to the person injured. This principle applies to municipal corporations : Painter v. The City of Pitts606 burg, 10 Wr. 213. If the contractor is to perform according to the plans and under the direction of an architect he is nowise relieved from his positive covenants to do the work; he continues to have control over the men lie employs and of the mode of performing his contract, and is liable for injuries caused by his neglect: Allen v. Willard, 7 P. F. Smith 371. In a contract with a city for the construction of a sewer, it was stipulated that the work should be commenced and carried on at such times and in such places and in such a manner as the engineer of the city should direct; and that was not such a reservation of power as made the city liable for an injury occasioned by the negligence of the contractor: City of Erie v. Caulkins, 1 Nor. 217. A contractor for the grading and paving of a street in a city, the work to be done “ under tlie directions and to the satisfaction of the city engineer and the committee on streets,” is responsible for an injury he does to property abutting on the street, and the city is not liable: Reed v. Allegheny City, 29 P. F. Smith 300. If the school district is to be treated as strictly a municipal corporation, the authorities settle that the employment of Shenk did not operate as a relief to the contractor, nor did it make the district liable as a master or principal for Hendry’s trespass or carelessness. But school districts are corporations of lower grade and less power than a city, have less the characteristics of private corporations and more of a mere agent of the state. They are territorial divisions for the purposes of the common school laws, and their officers have no powers except by express statutory grant and necessary implication ; and these are for the establishment and maintenance of the public schools. The common ' school system partakes much of the nature of a public charity, extends over tlie whole state, is sustained by the public moneys, and the directors, who devote much time and labor for the public benefit, receive no compensation for their services. Unless exempted by the act of incorporation, or by law, a private corporation is liable for the wrongful acts and neglects of its officers done in the course and within the scope of their employment, tlie same as a natural person is for the acts and neglects of his servant or agent. A less stringent rule applies to public corporations, and least stringent of all should be applied to school districts, whose officers have limited and defined powers in a system exclusively for the free education of the children in the Commonwealth. Tlie directors as a board must exercise their powers — tlie board may make contracts, may authorize a committee to make a contract, and may appoint an agent for a proper and specific purpose. One or more of the directora, without authority from the board, can make no contract binding upon the district, can — 607 — not change a contract, can do no act fixing the district for a liability. He may be personally responsible to those who suffer from his unauthorized acts, as any other citizen would be. If some of the directors were present ?„nd knew that Hendry commenced the work before the time named in the agreement, whether they assented or objected, the district was not bound. They could.not give him the right to begin at that time. If he began with the knowledge and assent of Shenk, the superintendent appointed by the board, he knew or ought to have known that tíllenle had no power to assent for the district. Hendry’s contract and Shenk’s contract with the .board contained no such authority. Shenk’s sole employment was to superintend the work. In absence-of a contract and without authority from the board, had those directors, who knew what Hendry was doing, made the excavation themselves, they would have been individually liable for an injury resulting to any person - by reason of their negligence — -the district would not have been bound to answer for the consequences of their trespass. The school board stipulated that possession of the building would be delivered at a date after the vacation of the schools. Before the schools had been closed some of the directors discovered that persons were making a dangerous excavation, and it would have buen humane in them to have endeavored to stop it. The board' might have been convened, and, if necessary, the schools suspended until the progress of the work could have been eujoined by legal process. But the directors omitted such action, and it is claimed that the district is liable in damages for the injmy done to the plaintiff by the act of a trespasser, or the unauthorized act of a contractor. Although the board of directors took no measures to prevent the excavation, we are of opinion that the persons who caused the injury are liable, and not the school district. The third and fourth assignments of error are sustained. Judgment reversed.