the district.' The question then presented in this case, which was not in the Herman Case (N. Y.) supra, is whether or not the duty is imposed upon the board by the statute, which gives it control of the school, to actually supervise the details of the work in the school. .. Is this a duty not delegable to others? The board of education is a body corporate; it is distinguished from its individual members; they are in no wise liable. The board of education can act only as a body. It is not called upon to, and it cannot, instruct in the schools. It is not intended that, as a board, it should be present in the schools when instructions are being given. It must necessarily give instructions through. its employees, the teachers employed. It has never assumed to instruct and directly control the details of instruction and work in the manual training school. This duty to instruct and control in the school work, therefore, must be a delegable duty. As between master and servant, the rule is settled in this state that, where the master has furnished reasonably safe tools and appliances, and has furnished machinery properly equipped and guarded, it is not liable for injuries received by an employee who fails to use such tools and appliances. Also the general rule is that, in the case of an institution or body corporate, like a board of education, the rule of respondeat superior does not apply. Herman v. Board of Education (1922) supra, 199 [24 A.L.R. 1065, 137 N. E. 24]. We conclude, therefore, that under the evidence here this defendant was not liable for these injuries, if the unguarded saw, or the failure to place the guard over the saw, were the sole cause of the accident." (Other recent New York decisions are set out in this annotation under the appropriate heads.)

.

Although this annotation is not concerned with the question as raised in Johnson City Bd. of Edu. v. Ray (1926) 154 Tenn. 179, 289 S. W. 502, which held that two members of a board of education were not individually liable for a pupil's injuries, received from a ladder insecurely fas

tened to the ceiling of the school gymnasium, yet it is interesting to note the following obiter statement of the court, as casting, possibly, some light upon what that court might think of the question under annotation: "If the board of education were charged with the duty of employing a competent inspector and have him inspect the gymnasium equipment at reasonable intervals, and they failed to do so, and injury resulted because of their neglect, they might be liable. But we are of the opinion that there is nothing in this record to show that said board was charged 'absolutely, certainly and imperatively' with the employment of an inspector, and hence the injury here complained of cannot be charged to them."

As shown in the annotation in 9 A.L.R. 917, the common-law rule of immunity from liability has been radically modified by statute in Washington. In Rice v. School Dist. (1926) 140 Wash. 189, 248 Pac. 388, the court affirmed a judgment holding that a school district was liable for the negligence of teachers in charge of the school grounds, in leaving exposed a live wire which shocked and burned a pupil while attending the school. approving an instruction to the effect that it was the duty of the district to see that the school grounds and all things connected therewith were kept in a reasonably safe condition for the use of the pupils, from the time it had knowledge that the wire was hanging down and reaching the ground where pupils might take hold of it, and that persons in charge of the school grounds, such as principals and teachers, were, for this purpose agents of the district, and their knowledge and acts were the knowledge and acts of the school district, the court quoted from Bruenn v. North Yakima School Dist. (1918) 101 Wash. 374, 172 Pac. 569, 19 N. C. C. A. 857 (see 9 A.L.R. 918), to the effect that "if the teacher knew it [the dangerous condition], it was negligence to permit it, and if she did not know it, it was negligent not to have observed it." The court in the Rice Case also held that there was no error in refusing a requested instruc

tion to the effect that to find the district liable it would be necessary to find that the board of directors had knowledge of the broken condition of the wire, or that it had so fallen down, and had remained that way for such a length of time, that the board would by use of ordinary care and diligence have had knowledge of such condition. II. Improper construction of buildings.

Tex.

(Supplementing annotations in 9 A.L.R. 913; 14 A.L.R. 1392, 1393; 21 A.L.R. 1329; and 24 A.L.R. 1070.) In McVey v. Houston (1925) Civ. App. —, 273 S. W. 313, where the duty of maintaining a system of schools was delegated to a municipality, incorporated for general purposes, the court said that such duty is public and governmental, and held that the city was not liable for injury to a pupil from the falling of an archway of a school building.

III. Failure to repair. (Supplementing annotations in 9 A.L.R. 913, and 14 A.L.R. 1393.)

A truant pupil who entered school grounds in disobedience to the principal's orders to stay away when not attending school, and who received injuries from a fall through a hole in a wire-mesh covering of a stairway, was said to be a trespasser, and hence no duty was owing to him to see that the covering was repaired. Basmajian v. Board of Education (1925) 211 App. Div. 347, 207 N. Y. Supp. 298, reversing (1924) 122 Misc. 530, 204 N. Y. Supp. 263. The court, moreover, was of the opinion that in any event the board could not be charged with negligence toward the boy, who was not using the stairway, but climbed the screen from the outside, the condition not amounting to an attractive nuisance, and, besides, the boy was guilty of contributory negligence, he having been warned against climbing the

screen.

See also Chicago v. Chicago (Ill.) (set out I. supra).

IV. Dangerous condition of grounds. (Supplementing annotation in 9 A.L.R. 914.)

In School Dist. v. Kenney (1925) 77

Colo. 429, 236 Pac. 1012, it was held that a school district was not involved in the question as to liability for injuries sustained by a pupil from the fall of a heavy radiator which an independent contractor left standing on the end of a cement sidewalk adjoining the school, because the district had no control over the independent contractor's manner of work.

See also Chicago v. Chicago (Ill.) (set out I. supra).

V. Unsuitable, defective, or dangerous appliances.

(Supplementing annotations in 9 A.L.R. 917; 21 A.L.R. 1329; and 24 A.L.R. 1071.)

In Gregory v. Board of Education (1927) 222 App. Div. 284, 225 N. Y. Supp. 679, the court said that it was the duty of the board of education to use reasonable care in the keeping and distribution of chemicals potentially dangerous in combination, but held that the board was not liable for injuries sustained by a pupil in conducting an unauthorized experiment, not included in the prescribed course of study.

The court remarked that it was of no avail that the board had not prescribed a course of study, since such an omission had no causal connection with the injury.

After observing that a mere incidental charge for nonresidents would not affect the public character of a school, the court held in Nabell v. Atlanta (1925) 33 Ga. App. 545, 126 S. E. 905, that the city of Atlanta was not liable for a pupil's injuries, received from a ripsaw, while attending a manual training class, because the city in maintaining and operating the school was performing a governmental and not a ministerial function, for which no liability would attach.

stitute an express abrogation of the common-law rule of nonliability of a municipality for the performance of a governmental function, so as to make a school district liable for injuries to a pupil, sustained by reason of the failure of the district to equip certain saws used in a manual training department with proper safety devices. and safeguards, particularly in view of the fact that a liability, if existent, could only apply to 'employees and frequenters,' neither of which would include school children, a 'frequenter' being one who frequents, or resorts to a place, or one who attends, or, as defined in § 2394-41, subd. 5, every person other than an employee, who may go in, or be in, a place of employment or public building, under circumstances which would render him other than a trespasser. Nor can § 2394–72, relating to the sale of mechanical devices and steam boilers which do not comply with the requirements of the law, be construed as having been enacted in order to create such liability on the part of the district."

And in affirming a judgment sustaining a demurrer to a declaration alleging that a school district was negligent in furnishing a pupil in the manual training class of a public high school with a "planer," which caused injury to the pupil, the court in Krutili v. Board of Education (1925) 99 W. Va. 466, 129 S. E. 486, 24 N. C. C. A. 896, observed that school districts were not liable to individuals, in the absence of statute making them so, for a mere neglect or nonfeasance in failing to keep school equipment in repair. Attention was also called to the fact that the statutory provisions making it the duty of the boards of education to keep such equipment in good repair, and authorizing them to sue and be sued in their corporate name, did not change the rule.

However, see Johnson v. Board of Education (1924) 210 App. Div. 723, 206 N. Y. Supp. 610 (set out in subd. I. supra).

VI. Unsafe transportation of pupils. (Supplementing annotation in 9 A.L.R. 918.)

In the reported case (CONSOLIDATED SCHOOL DIST. v. WRIGHT, ante, 152) the court observed that furnishing free motor transportation to public school children under a statute in relation thereto, by a district board of a consolidated school district, was a public function, and that said board was not liable in damages for injuries to a pupil, caused by the negligence of its officers, agents, or employees in the control or operation of its motor truck for such purposes, where they have acted in good faith and without malice.

The contention was made in Allen v. Independent School Dist. (1927) Minn., 216 N. W. 533, that transportation of pupils is not a part of the governmental control of the schools, although authorized by statute, but the court said that, the district having undertaken to exercise the privilege, the duty in connection therewith was public, and hence no liability would result from the negligent operation of the bus in the transportation of the pupils at public expense.

And Horton v. Bienville Parish School Bd. (1926) 4 La. App. 123, held that a school board was not liable in damages for the negligence of a driver of a school bus, because of injuries received by a child while being transported from a school, which he was attending, to his home.

But in Williams v. Eaton (1923) 204 App. Div. 566, 198 N. Y. Supp. 476, where the board of trustees of a school district entered into a contract with a woman to transport young children to a school in another district, and a child nine years old was caught by a wheel of the wagon, which ran up several inches higher than the box of the wagon, and was unguarded, the court, in reversing a judgment dismissing the complaint, said that the board, a body corporate, although a governmental agency, was still liable for its own negligence, and could not avoid such liability by delegating the performance of its duties to a contractor;

and that the evidence was sufficient to take the case to the jury. The court adhered to this position on a subsequent appeal in (1924) 210 App. Div. 161, 205 N. Y. Supp. 742, and, in explaining the reason for departing from the general rule of immunity, said: "We fully appreciate the far-reaching effect which the principle we have stated as to the liability of school districts may have on the matter of expense of rural education, and the particular consequences which necessarily fall on the residents and taxpayers of this district. But we deem the protection of small, helpless children from avoidable injury of still greater import

ance." The court added that the defendant undoubtedly was not bound by the doctrine of respondeat superior, and could not be held liable for the negligent act of the driver; but that the duty of selecting a competent person and driver rested upon the defendant.

VII. Negligence of officers, servants, or agents.

(Supplementing annotations in 9 A.L.R. 919; 14 A.L.R. 1393; 21 A.L.R. 1330; and 24 A.L.R. 1072.)

See also the appropriate subdivisions of these annotations for cases involving negligence of officers, serv

ants, or agents in respect of particular conditions.

In Spencer v. School Dist. (1927) 121 Or. 511, 254 Pac. 357, in holding, in a minor's action against a school district, that the latter was not liable for negligence in maintaining a radiator in a gymnasium, the court said that under the Oregon statute the school district functions as an agency of the state, and not in a private or proprietary capacity, and hence, in performing the duties imposed upon it by statute, it is immune from an action for damages for negligence.

In Heppel v. Columbus (1922) 106 Ohio St. 107, 140 N. E. 169, where a

pupil of one of the public schools suffered injury from the extraction of a tooth by an incompetent dentist in the employ of the school district, the court held that no liability was thereby cast upon the school district.

In New York the doctrine of respondeat superior does not apply to a board of education in the discharge of its governmental functions. Katterschinsky v. Board of Education (1925) 215 App. Div. 695, 212 N. Y. Supp. 424; Johnson v. Board of Education (1924) 210 App. Div. 723, 206 N. Y. Supp. 610; Williams v. Eaton (1924) 210 App. Div. 161, 205 N. Y. Supp. 742. J. H. J.

Judges, § 23 powers requiring attorney to produce affiants.

2. A court in which affidavits of prejudice in a criminal case are filed, which under the statutes require the

calling in of another judge, has no power to require defendant's attorney to produce the affiants in open court for examination as to their residence and other qualification.