HERMAN v. BOARD OF EDUCATION

POUND, J.

Plaintiff, a pupil in the manual training department of the Arcadia High School, received injuries while operating an unguarded buzz saw as a part of his school work. Defendant board of education is a body corporate with capacity to sue and be sued ( Ham v. Mayor, etc., of N.Y., 70 N.Y. 459), having the power and impressed with the duty to superintend, manage and control the school. (Education Law [Cons. Laws, ch. 16], § 310.) Defendant Croop is the superintendent of schools in charge under the board of education of the school property. The manual training department is maintained by authority of law. (Education Law, § 600 and following.)

It is not sought in this action to charge the defendant board of education with the negligence, misconduct or misfeasance of its subordinates and employees. The learned trial judge held that the doctrine of respondeat superior did not apply ( Wilcox v. City of Rochester, 190 N.Y. 137; Hughes v. County of Monroe, 147 N.Y. 49; Wahrman v. Board of Education, 187 N.Y. 331, 335) and submitted the case to the jury on the theory that the defendant board of education could be held liable only for its own corporate act in purchasing, installing, operating and permitting to be used by the pupils in the school under its direct control a dangerous machine, the character of which was known to it, or should have been known if it had exercised proper care. A finding of the jury that the defendant board was guilty of such negligence has been unanimously affirmed. The question here arises on a reserved motion for a nonsuit, denied after verdict, made on the ground that such negligence did not impose liability because the defendant board was a governmental agency.

Boards of education have been held responsible for negligence when their own corporate act in the discharge of their corporate duties is the negligence complained of. The members of the board as such act only as members of the corporation and not individually. They are not the hired agents of the corporate body engaged to act in their private capacity. Their corporate character protects them from individual liability where their official character is the opportunity or occasion of the neglect. If they neglect to discharge the duties immediately imposed upon them by law, the neglect is that of the corporate body and not of the individuals composing it. ( Bassett v. Fish, 75 N.Y. 303.)

But it is now contended not only that the individual members of the board are immune, but that the corporation is a governmental agency of the state, a part of the sovereign power of the state, and is also immune from liability for its torts. While this contention has not been squarely met by any controlling decision of this court we are practically foreclosed from considering it. The state and its civil divisions when engaged as the delegates of the state in the discharge of governmental functions are not liable for the torts of their agents and contractors, unless such liability has been assumed or imposed by law. ( Conrad v. Trustees of Vil. of Ithaca, 16 N.Y. 158; Murtha v. N.Y. Homeo. Med. College F.H., 228 N.Y. 183. ) The board of education is a governmental agency of the state. It is not a civil division of the state. It is not liable for the torts of its agents. Such agents, like policemen in a city, are personally liable for their torts done in the course of their employment, but the corporation is not chargeable with their defaults. It, however, remains liable for its own negligence. It is said in Maxmilian v. Mayor, etc., of N.Y. ( 62 N.Y. 160, 169) that "where the duty is upon the city itself and not upon public officers appointed by it, where it accepts the duty and the power to perform it, and itself, by its own agents, sets about the work, or undertakes to set about it by its own agents, then, for negligent omission to do or for doing in a negligent way, it may be liable." A personal act of misfeasance is here established. This rule has been applied to boards of education. ( Wahrman v. Board of Education, supra.) "It is urged that the board of education is not liable for the torts of its subordinates. It is unnecessary to consider that question. The evidence shows that the board of education, as such, participated in the appropriation of the property claimed by the plaintiff and for such act, if wrongful, the board was subject to suit." ( Titusville Iron Co. v. City of N.Y., 207 N.Y. 203, 208.) When the state surrendered to the board a portion of its sovereign power and delegated to it a duty imposed upon the state by the Constitution (Art. IX, § 1) and it accepted the trust, it undertook to perform with fidelity the duties which the law imposed upon it. It is not immune from suit. The state has not created an irresponsible instrumentality of government and invested it with the power to put children at work at dangerous machinery which it would be a statutory offense against its laws to use in private industries. (Labor Law, § 256; L. 1921, ch. 50.) The corporate cloak covers the individual trustee, but where the corporate body acts for itself and not through the agency of its officers and employees, it is bound to act with due regard for the safety of the children and others in its care in the discharge of those duties imposed on it by law, which are not delegated or delegable to others.

The school district is a civil division of the state. It may act only through its officers and agents. Its power of individual corporate action is limited to the choice of agents, who act in a representative capacity. Its members are the residents of the district. The board of education is the agency to which the state delegates the power and duty of controlling the schools in the district. Under such circumstances the position of the board is the same as that of any other agent of the state similarly situated. Although it acts in its corporate capacity, it is not absolved from liability as a governmental agency to the extent of the funds vested in it for the purpose by statute or which it is empowered thereby to raise by local taxation.

The negligence of defendant Croop is conclusively established as matter of law by the unanimous affirmance.

The judgment appealed from should be affirmed, with costs.

HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.

Judgment affirmed.