McBride v. School Dist. No. 2, Silver Bow County

• Decision Date: 19 July 1930
• Docket Number: 6642.
• Citation: McBride v. School Dist. No. 2, Silver Bow County, 290 P. 252, 88 Mont. 110 (Mont. 1930)
• Parties: McBRIDE v. SCHOOL DIST. NO. 2, SILVER BOW COUNTY.
• Court: Montana Supreme Court

290 P. 252

88 Mont. 110

McBRIDE v. SCHOOL DIST. NO. 2, SILVER BOW COUNTY.

No. 6642.

Supreme Court of Montana

July 19, 1930

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Margaret McBride against the School District No. 2, Silver Bow County, a corporation. From an adverse judgment, the defendant appeals.

Affirmed.

H. J Freebourn, Harlow Pease, and T. J. Davis, all of Butte, for appellant.

E. M Lamb and Earle N. Genzberger, both of Butte, for respondent.

MATTHEWS J.

Margaret McBride taught the Rocker school, in Silver Bow county, for five years, under a contract with the school board, closing her last term in June, 1928. On April 25, 1928, Miss McBride received the following notice: "You are hereby notified to kindly put in your application for next term if you want the school. Miss Lillian Hawkins, Clerk of the Board." She thereupon filed the usual application, and thereafter received no notice from the school board.

On September 10, 1928, plaintiff presented herself for duty, but found another teacher in charge of the school. In October she demanded of the clerk a warrant for $145, the contract salary for the first month of the term, which demand was refused. On October 20, 1928, plaintiff brought action to recover the amount demanded as one month's salary, together with 5 per cent. penalty, and an attorney's fee of $100 for the prosecution of the action.

The complaint filed alleges that plaintiff was automatically re-elected for the year beginning September 10, 1928, under the provisions of section 1075, Revised Codes of 1921, as she had been elected for more than three consecutive years theretofore, and that plaintiff "considered" the communication quoted above "a notice of her re-election as by said statute provided" and accepted the same in writing.

By answer the school board denied the allegation of re-election and affirmatively alleged that the board refused to re-elect plaintiff and notified her to make application if she desired the school; that plaintiff had full knowledge of the action of the board, and that her application made on April 28, 1928, was a reapplication for employment which was rejected by the board and notice of rejection given in August, 1928. The answer alleges, in effect, that the custom of the district, acquiesced in by the teacher during her years of employment, was to notify the teacher in advance that she would not be re-employed and then to request her to put in an application, thus freeing the board from the requirements of the statute. Issue was joined by reply.

On a trial of the cause each party moved the court for an instructed verdict; the motion of plaintiff was granted, and the jury was instructed to return a verdict for plaintiff for $145, with interest from date of demand; such verdict being returned, judgment was entered thereon.

The defendant has appealed from the judgment, but has brought up for our consideration only the judgment roll, on which it is contended that the complaint does not state a cause of action, and that the judgment is not supported by sufficient pleadings to sustain it.

1. In so far as the judgment is concerned, a transcript of the evidence not being before us, we must assume that the proof was ample to support, and that, if it is not supported by the pleadings, they were deemed amended to conform to the proof. Blackwelder v. Fergus Motor Co., 84 Mont. 374, 260 P. 734; Bond Lumber Co. v. Timmons, 82 Mont. 497, 267 P. 802; Shaw v. McNamara & Marlow, 85 Mont. 389, 278 P. 836.

2. The defendant asserts that the complaint herein does not state facts sufficient to constitute a cause of action, as it shows on its face that the notice required by section 1075, Revised Codes 1921, was given by defendant to plaintiff on April 25, 1928.

Section 1075, as amended by chapter 87, Laws 1927, provides that, "after the election of any teacher or principal for the third consecutive year in any school district in the state, such teacher or principal shall be deemed re-elected from year to year thereafter at the same salary unless the board of trustees shall by majority vote of its members on or before the first day of May give notice in writing to said teacher or principal that he has been re-elected or that his services will not be required for the ensuing year; provided that nothing in this Act shall be construed to prevent re-election *** at an earlier date, and also provided that in case of re-election *** he shall notify the board *** in writing within twenty days after the notice of such re-election of his acceptance *** and failure to so notify *** shall be regarded as conclusive evidence of his nonacceptance of the position."

The notice given plaintiff by the clerk of the district, quoted above, was not notice that the board, by a two-thirds vote of its members, had determined that her services would not be required "for the ensuing year," but rather a request by the clerk of the district that she indicate whether she desired to retain her position, without any indication that it was made at the direction of the board.

We do not say that a school board may not discharge all of its teachers prior to May 1st and then request such teachers as it desires to retain to make application for a position, as alleged in the answer was done, but here we must assume that the evidence did not support the allegation of the answer.

The complaint alleges "that the Board of Trustees did not by a majority vote of its members on or before May 1, 1928, give notice in writing to plaintiff *** that her services would not be required. ***" It is true that she alleges that she "considered" the communication of April 25 "a notice of her re-election," but her construction of the communication was but a conclusion not binding on the court and is mere surplusage; the fact remains that the complaint alleges that the board did not comply with the requirement of the statute and the court found that this allegation was proved.

Defendant asserts that the complaint is insufficient in that it does not allege that she gave notice of acceptance within twenty days, but the requirement of the statute in this regard is merely that the teacher accept within twenty days after receiving notice of re-election; as no such notice was given, no notice of acceptance was required.

Relying...