The plaintiff was struck and injured by an automobile and sues for damages. The allegations with reference to the ownership of the automobile and the duties of the driver are: that "the defendant owned a certain automobile truck which was then and there bearing city and county license No. 324, which said truck was then and there used by the defendant in the transportation of carpenters and laborers and/or material and lumber and/or school janitor supplies; that the defendant then and there *Page 458 employed one Manuel R. Souza to operate said automobile truck; * * * he being then and there attached to the defendant building inspector's office as a truck driver in the school building construction and repairs and supply department on a monthly salary;" and "that the said Manuel R. Souza as such agent and servant of the defendant was then and there operating said automobile truck in a southerly or Waikiki direction on said north King street, returning from transporting and conveying of certain said carpenters of the defendant from said Honolulu to the Leilehua school building in the district of Wahiawa." There is nothing in the declaration to indicate that the driver at the time of the accident had deviated from the course of his duty or was not acting within the scope of his duty. On the contrary the statement is that he was then and there operating the truck "as such agent and servant of the defendant," from which the inference clearly is that he was acting within the scope of his duty.
The truck, it is alleged, was used by the defendant in the transportation of carpenters and laborers and Souza, the driver, was "then and there" attached to the building inspector's office "as a truck driver in the school building construction and repairs and supply department." It seems to me that this is the equivalent of saying that that was the driver's sole occupation and duty and that it sufficiently appears from these allegations that at the time of the accident he was "returning from transporting * * * said carpenters of the defendant * * * to the Leilehua school building" and that the carpenters were engaged in the construction of or repairs to that building.
In this view the question is raised as to whether the construction and repair of school buildings is a governmental function, with consequent immunity to the city and county for accidents arising from or connected with such construction and repairs. The decision of the majority, *Page 459 however, to the effect that that question is not raised renders it unprofitable and unnecessary for me to set forth my views on that subject.