Mitchell v. Hartman

GRAY, J.,

pro

tem.

Appellant sued the city of Pomona and the individual members of its board of education for

[372]

the death of his son, who was killed by the fall, upon his body, of the supporting framework of a “tackling dummy” which he was then using. Respondents’ liability, as alleged, is based upon their negligent erection and maintenance of the “tackling dummy” upon the campus of a junior- high school, which deceased was then attending. Holding that the liability, if any, rested upon the school district, not joined as a party, the court granted motions for a nonsuit, separately made by the city and the members.

Appellant argues that, because the city’s charter (Stats. 1911, p. 1913) authorizes the city to acquire, establish, maintain, own and operate schools, provides for the election of a board of education and invests such board with the entire control and management of the schools in the city, the school in question owed its inception, existence and maintenance to the city and therefore the city is liable for the tortious acts of the board created by. it. The accuracy of these conclusions is dependent upon the correctness of the premises, based upon the charter. Section 6 of the charter (page 1916) provides that: “The elective officers of the city shall be ... a president . . . and four members of the board of education. ...” Section 52, subdivision 4 (page 1924), reads as follows: “ . . . the City of Pomona shall have the right and power: To acquire . . . and to establish, maintain, equip, own and operate . . . schools. . . . ” Section 73 (page 1938) states, that: “The Board of Education shall have entire control and management of the public schools in the city

in accordance with the constitution and general laws of the state

and is hereby vested

with all the powers and charged with all the duties provided

by this charter and

by the general laws of the state for city boards of education.”

(Italics ours.) While as to matters of tenure and compensation, which ar.e matters that may be regulated by the charter (Const., art. XI, sec. 8%, subd. 2), members of the board of education have been treated as municipal officers