Fertich v. Michener

• Court: Indiana Supreme Court
• Writing for the Court: NIBLACK
• Citation: Fertich v. Michener , 111 Ind. 472, 11 N.E. 605 (Ind. 1887)
• Decision Date: 28 April 1887
• Parties: Fertich v. Michener.

111 Ind. 472

11 N.E. 605

Fertich

v.Michener.¹

Supreme Court of Indiana.

April 28, 1887.

Appeal from circuit court, Shelby county.D. L. Wilson, J. B. McFadden, and L. F. Wilson, for appellant. B. F. Love, O. J. Glessner, M. B. Berryman, L. J. Stockney, E. K. Adams, and H. C. Morrison, for appellee.

NIBLACK, J.

This was an action by Nora S. Michener, a minor child, acting through Lewis T. Michener, her father and next friend, against William H. Fertich, for alleged injuries received while attending a public school of which Fertich was the superintendent. The complaint was in three paragraphs. The first charged that the plaintiff, during the school year commencing in September, 1884, was a resident of the city of Shelbyville, in this state, and was a pupil at one of the public schools of that city; that on the morning of the twenty-second day of January, 1885, which was an extremely cold day, the plaintiff, during school hours, repaired to her room in the public school building in which she was accustomed to receive, and for the purpose of receiving, instruction from her teacher; that she found the door of her school-room locked, by reason of which she was unable to gain admittance, and was compelled to return to her home through snow and cold, which resulted in her having both of her feet frozen, and thereby permanently injured, to her great damage; that she was so excluded from the school-room by order of the defendant; and that her injuries were not in any respect caused by any negligence on her part. The second paragraph charged the defendant with having, on the fifteenth day of January, 1885, wrongfully and unlawfully restrained the plaintiff of her liberty for a period of 30 minutes. The third paragraph charged that on the fifteenth day of October, 1884, a certain rule for the government of the public school which the plaintiff was attending, as in the first paragraph stated, was in force, and was in the following words: “When pupils respectfully ask permission to leave their room, they must be permitted to do so.” That, on that day, the plaintiff, having a pressing necessity to do so, respectfully asked permission to leave her room; but that her teacher, acting under the order of the defendant, refused such permission, by reason of which she, the plaintiff, was subjected to great suffering and annoyance, and to consequences both repulsive and humiliating, and to her great damage.

The defendant answered- First, that the hall in the school building leading to the plaintiff's school-room, and where she entered the building and remained until leaving for home, was, on the morning complained of, comfortably warmed by a furnace immediately under it; that the daily sessions of the school were from 8:45 a. m. until 11:45 a. m., and from 1:15 p. m. until 4:15 p. m., which times had been fixed, and notice thereof published, by the board of school trustees of the city of Shelbyville, and of which the plaintiff had been fully informed; that, prior to the commission of the alleged grievances stated in the first paragraph of the complaint, the plaintiff had been instructed by her teacher that, if she came to school after 8:45 a. m. and 9 o'clock a. m., she should remain in the hall of the school building, or go into the office of the principal of the school in the same building, and remain there until the conclusionof the morning exercises, which last from 10 to 15 minutes, and which at no time extend beyond 10 o'clock a. m.; that the plaintiff, on the morning of the day named in said first paragraph of the complaint, came to the school building after the morning exercises had begun, and, finding that she was not in time for such exercises, remained in the hall, which was then comfortably warmed, for a period of seven minutes, when she left for home of her own accord, and without the knowledge or consent, either of her teacher or of the defendant, thereby unnecessarily exposing herself to the snow and cold; that at no time during that morning was the defendant nearer than a distance of a half mile from said school building; that, if the plaintiff received any injury on the morning in question, it was by reason of her own fault and negligence, and not on account of any act or omission of the defendant. Secondly, repeating the substantial facts set up in the first paragraph, but in a different and more condensed form. Thirdly, that, as to the charge contained in the second paragraph of the complaint, the plaintiff was never kept or detained in the school building, to which reference has been made, later than 4:15 p. m., the time fixed by the school trustees for the closing of the daily sessions of the school. Fourthly, the general denial.

Issues were formed upon the first, second, and third paragraphs of the answer by a reply in denial. A trial resulted in a verdict for the plaintiff, and in a judgment on the verdict.

This action was avowedly commenced, and this appeal is seemingly prosecuted, more for the purpose of settling some general principles concerning the management of our public schools than on account of the amount of damages actually involved in the controversy. It was shown by the evidence that the school trustees of the city of Shelbyville, in May, 1884, appointed Fertich, the appellant, superintendent of the public schools of that city for the ensuing school year, and that he was, in connection with his duties as such superintendent, to perform some services as a teacher in the city high school, if required to do so; also that such trustees had already adopted and promulgated a system of rules for the government of the public schools of the city, nearly all of which were read in evidence. One of these rules prescribed the time to be occupied by the daily sessions of the schools, which was in substance as stated in the first paragraph of the answer. Another declared the right of every pupil to retire from the school-room when permission was respectfully asked, as set out in the third paragraph of the complaint. Others pertained to the duties of teachers, and still others had reference to the powers and duties of the superintendent. The first of this latter class of rules was as follows: “The superintendent shall have the supervision of all the schools, and the general care of all school property, and act under the advice and direction of the board of trustees.” The second declared that he, the superintendent, shall be especially charged with the enforcement of the rules of the board, and be held responsible for the general management and discipline of the schools. The third required the superintendent to visit weekly all the departments of the schools under his charge, and to see that the best methods of instruction were adopted. The fourth required the superintendent to appoint meetings of teachers as often as necessary to secure uniformity of teaching and discipline, and to report to the trustees when a teacher should be found to be deficient and incompetent.

It was further made to appear that it was, and had previously been, the custom, in the school which the appellee had been attending, to devote the first 15 minutes after meeting in the morning to what was termed the opening or morning exercises, which consisted of prayer, chants, singing, reading, recitations, invocations, and impressive short lessons, varied from time to time in the discretion of those in the immediate charge of the school; that on the morning of the twenty-second day of January, 1885, the temperature of the atmosphere stood at about 18 degrees below zero, and that on that morningthe appellee did not reach the school building until after the opening exercises had begun; that she found both of the doors leading to her school-room from the hall of the building locked; that she tried both doors, and could not gain admission; that the janitor of the building invited her to approach the register in the hall, which was in reasonably well-heated condition, and warm herself, but that she declined, under the belief that she was not allowed to stand by the register without first obtaining the consent of her teacher; that she had forgotten, if she ever knew, that she had the right to go into the principal's office, and to remain there until the opening exercises were over; that she, after remaining in the hall for six or seven minutes, and finding that her feet were becoming quite numb and cold, left the building and returned home; that on her way home her feet became frost-bitten or frozen; that in consequence she became lame and disabled, and suffered great pain at times thereafter. It was still further shown to have been the policy of the appellee's teacher to discourage the pupils, so far as practicable, from retiring from the school-room during school hours, and that the appellant had concurred in that general policy, but there was no evidence tending to show that he had ever instructed the appellee's teacher not to permit her, or any one else, to retire when permission was properly asked; that the class to which the appellee belonged was usually dismissed as early as 15 minutes past 3 o'clock in the afternoon; that the appellee, in common with other pupils, was sometimes detained, or kept in, as it was usually termed, for 10 or 15 minutes after the class was dismissed, and required to further study her lessons during that additional time; that the appellee usually had the impression, when she was kept in, that it was as a penalty for having retired from the room during the day, but as to the extent to which she was justified, if at all, in receiving that impression, the evidence was conflicting; that some time in October, 1884, the appellee asked permission to retire from the school-room, but that permission was refused, upon the ground that the school would close for the day in 10 or 15 minutes; that, in consequence of such refusal, the appellee suffered annoyance and inconvenience, and was subjected to shame...