Rhoades v. School District No. 9 , 115 Mont. 352 ( 1943 )

I dissent. As is indicated in the quotation from Perkins v.Trask, 95 Mont. 1, 23 P.2d 982, found in the majority opinion, the reason for the rule exempting school districts from tort liability is not generally agreed upon by the authorities. The rule arose, of course, from the old idea that the king could do no wrong, and suit would not lie against the sovereign. The courts of this land have never agreed on any single basis why, in the absence of statute, recovery against the school district cannot be had by reason of its tort. One state (California) has entirely discarded the old rule. (See, also, Kelly v. Board ofEducation, 191 A.D. 251, 180 N.Y. Supp. 796.) Most of the states, in attempting to decrease the severity of the rule, have adopted the governmental-proprietary test. This test is an arbitrary one, but the general trend of the decisions is to declare more and more functions proprietary rather than governmental so as to allow recovery. It is now generally agreed that neither logic nor justice supports the general rule which in this case denies recovery to the person injured where she goes for entertainment to a basket ball game sponsored by a school district, while on the other hand for exactly the same injury under the same conditions she could recover if she had gone to a theatre and had been there injured. For a general discussion of the governmental-proprietary test as applied to municipal corporations in the light of recent decisions, see the article in 22 Virginia Law Review, 910, and also the article in 54 Harvard Law Review, 437.

This court has in its recent decisions followed the trend of the majority of the courts of this country by applying the governmental-proprietary test liberally so as to permit recovery. The gist of the majority's opinion in this case is that the activity here in question was so closely connected with the historically recognized governmental function of the school district that it partook of the same nature. It seems to me that in the Jacoby case cited in the majority opinion, (Jacoby v.Chouteau County, 112 Mont. 70, 112 P.2d 1068), and certainly in the Johnson v. City of Billings case, 101 Mont. 462,54 P.2d 579, the activity out of which the tort arose was as closely identified with the governmental function, if not more so, than the holding of the public contest which we have in this case. I cannot reconcile the decision in this case with the decisions of those two cases, particularly the more recent one ofJacoby v. Chouteau County, supra.

Rehearing denied November 26, 1943.