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Action for damages. Ware Superior Court. Before Judge Hodges.
FELTON, Chief Judge.
The defendant independent school system had no authority to indemnify out of public tax funds the plaintiff father of a student accidentally injured while participating in defendant's high school's football program. The defendant's representation, that it had an accidental injury insurance policy covering "all" medical expenses thus incurred, was merely an expression of a legal opinion, which it had no authority to make, upon which the plaintiff had no right to rely, and which was without sufficient consideration to constitute a contract with the plaintiff for the payment of the son's medical expenses excluded by the policy, even if such contract were not ultra vires.
Hugh F. Bates brought an action against the Board of Education of the City of Waycross to recover damages upon an alleged contract for medical services and expense incurred as a result of personal injuries to his son, Newton. The petition as amended alleged substantially as follows: that the defendant is an independent school system; that, as a part of educational curriculum and activities under the supervision of defendant, Waycross High School conducts an athletic program in which students participate, including interscholastic football competition; that Dr. Floyd Davis was employed by defendant as team physician and it was his responsibility to treat, insofar as practicable, all injuries sustained in football activities, and to arrange for such treatment as required the services of a specialist, all with the concurrence of the injured student and his parents; that on or about October 26, 1962, plaintiff's son sustained a knee injury in a football game and Dr. Davis undertook the treatment thereof; that the knee did not heal completely and Dr. Davis ultimately referred the boy to a specialist, who recommended an operation; that, upon such recommendation, Dr. Davis made arrangements for the operation, which was performed on June 10, 1964; that, although all of the medical services were contracted for by defendant, acting by and through Dr. Davis, the hospital and doctors billed the plaintiff, who paid them; that, prior to the injury, defendant had represented to students participating in football and to their parents that it had procured an insurance policy adequate to cover all medical expense attendant on injuries sustained by any student participating in any football activity under school supervision, but defendant did not furnish to plaintiff or his son any policy, memorandum or copy of any policy and plaintiff and his son had no knowledge of the contents of any insurance policy; that throughout the course of the medical supervision of such injury by Dr. Davis, it was the understanding and belief of Dr. Davis, plaintiff and his son that such insurance would provide funds adequate to cover all attendant medical expense; that, after all of such expense had been incurred, the above parties learned for the first time that the policy covered only expenses incurred within one year from the date of injury; that it was under these circumstances that plaintiff permitted Dr. Davis to make all the arrangements by which such expenses were incurred.
The defendant appeals from the judgment of the court overruling its renewed general demurrer to the petition as amended.
Neither a member of a high school football team nor his father can maintain an action based on negligence against the school for an injury received by the student while playing on its football team with the father's express or implied consent. Hale v. Davies, 86 Ga. App. 126, 129 (70 SE2d 923); 86 Ga. App. 130 (70 SE2d 926). The present plaintiff, however, bases his action on an alleged contract by the defendant to defray his son's medical expenses incurred during his participation in its school's football game. The contended bases of this alleged contract are (1) the defendant's procuring an accidental injury policy to cover such injuries, (2) its representation to the plaintiff and his son that it had such insurance, which was "adequate to cover all medical expense attendant to injuries sustained by any student participating in any football activity under school supervision" (emphasis supplied), and (3) the making of the arrangements for the medical services by the defendant's agent.
It is not necessary to decide whether the defendant had authority to carry this particular type of insurance, or whether its procurement thereof waived any governmental immunity it might have had to the extent of the face amount of the policy, since the action was not brought to recover on the policy (which is alleged to have excluded the expenses sued for), but rather directly against the defendant on an independent, implied contract. This means, absent any allegation to the contrary in the petition, that a judgment against the defendant school system would have to be paid, not by the insurance policy, but out of the defendant's general funds, which are derived from the municipal corporation's levy of local taxes, as authorized by Code Ann. 32-1111 (Ga. L. 1919, p. 340; Ga. L. 1946, pp. 206, 211) and Code Ann. 2-7001 (Const. of 1945, Art. VIII, Sec. VII, Par. I). Municipal corporations are limited in their expenditures of tax money, for the operation of independent school systems, to "educational purposes." If a public school is not liable for an action based on negligence, it is even more obvious that it would not have authority to pay claims for accidental injuries, where no negligence is involved. See in this regard 84 ALR 963; Jarrett v. Goodall, 113 W. Va. 478 (168 SE 763); Brunson v. Caskie, 127 Ga. 501, 502 (56 SE 621, 9 LRA (NS) 1002); Wrightsville Consol. School Dist. v. Selig Co., 195 Ga. 408 (24 SE2d 306). Even assuming that the defendant could procure insurance such as it is alleged to have represented, it was without legal authority to contract that it had obtained the policy alleged to have been represented. Such a contract involves the expression of a legal opinion upon which the plaintiff has no right to rely and which the defendant had no authority to make. Since it is alleged that the plaintiff knew, prior to the injury, of the existence of the policy and that the policy was the means by which the defendant would indemnify him, it was incumbent upon him to ascertain for himself the actual provisions and limitations of the policy, so that he might take whatever appropriate and timely action was thereby indicated as necessary or advisable.
Even if defendant had had the authority to so contract, the petition does not allege the plaintiff's reliance on the representation as the consideration for such contract. In the absence of any allegation that the medical expenses were unnecessary or that the plaintiff would not have incurred them without the supposed insurance coverage, it is immaterial whether the arrangements for the medical treatment were made by the plaintiff personally, or on his behalf by the defendant's team physician, whose job it is alleged to be to make such arrangements.
The petition failed to state a cause of action against the defendant school system; therefore, the court erred in its judgment overruling the defendant's renewed general demurrer to the petition as amended.
Judgment reversed. Frankum, J., concurs. Pannell, J., concurs in the judgment.
Gibson, McGee & Blount, Lamar Gibson, for appellee.
Wilson G. Pedrick, for appellant.
Friday May 22 19:55 EDT

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