Kirkpatrick's Adm'x (Bronaugh) v. Murray , 294 Ky. 715 ( 1943 )

I differ so widely with my brethren on the law involved in this case that a dissenting opinion is deemed necessary.

The majority opinion, quoting from Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W.2d 700, reasoned that the legislature may make boards of education liable for torts, hence it could authorize them to carry liability insurance. But the legislature has not seen fit to make such boards liable for torts, therefore had plaintiff in the instant case sued the board, the petition would have been bad on demurrer. The majority opinion holds the individuals liable as members of the board when there could be no recovery against the board itself. However, the theory might be advanced that the members individually are not liable by reason of the tort of the driver of the school bus but because they failed to comply with the statute and require the driver to carry liability insurance, or in lieu thereof failed to set aside a sufficient sum from the school fund to protect the board against his torts. But the very insurance the board members failed to require the driver to take did not protect the board against liability for his torts, as the law of this jurisdiction plainly says the board is not liable therefor.

Thus it is evident that the insurance was not for the protection of the board but under KRS 160.310 it was for the protection "of any school child or other person" (my italics) — which can have no other meaning than that the school fund can be diverted to the benefit of the general public and used to pay claims for which the board cannot be held liable. This is a flagrant violation of sec. 184 of our Constitution which provides inter alia:

"The interest and dividends of said fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose."

In Wilson v. Board of Education of City of Russellville,226 Ky. 476, 11 S.W.2d 143, this court held that an act of the legislature permitting boards of education to pay for street improvements in front of school property violated sec. 184 as a use of school funds for other than school purposes. If money used to build a street in front of school property is not used for school purposes, how can it be said with any degree of logic or reason that the payment of an insurance premium out of the school fund to protect the general public from the tort of the school bus driver, for which the board is not liable, is money used for school purposes.

Let it not be lost sight of that when school funds are used in payment of liability insurance premiums that the board is indirectly spending school funds in satisfaction of torts for which it is in nowise liable. All judgments satisfied by the insurance carrier are collected piecemeal from the school fund with a high rate of interest, not to mention a substantial service charge. This court was particular to say in Taylor v. Knox County Board of Education, 292 Ky. 767,167 S.W.2d 700, 702, "in no event * * * can the judgment be collected out of school funds," but that very thing comes to pass when the insurance premiums are paid from such funds. It is small wonder our schools are facing a grave crisis due to lack of money to pay teachers a living wage when the school fund is depleted and diverted to pay for the protection of the general public from torts of the school bus driver for which the board is not liable. To my mind, this is not only a violation of sec. 184 of the Constitution, but is a direct gift of school money to members of the general public to whom the school board owes no duty.

The instant case is easily differentiated from Duff v. Chaney, 291 Ky. 308, 164 S.W.2d 483, and Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171. In each of those cases the teacher, who was not employed after having been duly recommended, had a direct interest in being elected and the defendant members of the board owed her the duty under the law of electing her, and her damage was the proximate result of defendants failing to perform their, official duty. In the case at bar the board owed plaintiff's decedent no duty, nor can it be said that their failure to comply with KRS 160.310 was the proximate cause of her damage or in any way connected therewith.