Phelps v. Sch. Dist. No. 109

• Citation: 134 N.E. 312,302 Ill. 193
• Decision Date: 22 February 1922
• Docket Number: No. 14056.,14056.
• Parties: PHELPS v. SCHOOL DIST. NO. 109, WAYNE COUNTY.
• Court: Supreme Court of Illinois

302 Ill. 193

134 N.E. 312

PHELPS

v.SCHOOL DIST. NO. 109, WAYNE COUNTY.

No. 14056.

Supreme Court of Illinois.

Feb. 22, 1922.

Action by Gladys Phelps against School District No. 109, Wayne County. From a judgment affirming a judgment for plaintiff (221 Ill. App. 500), defendant appeals.

Affirmed.

Stone, C. J., dissenting.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Wayne County; J. C. Eagleton, Judge.

Mills & Forth, of Fairfield, for appellant.

Herbert F. Kerr, of Fairfield (Carroll C. Boggs, of Fairfield, of counsel), for appellee.

FARMER, J.

This is an appeal, on a certificate of importance, from a judgment of the Appellate Court affirming a judgment of the circuit court for $100 in favor of appellee. Appellee is a school-teacher and was regularly employed by appellant to teach school at a salary of $50 per month. It is stipulated that during 2 months of the period for which she was employed the school was closed by order of the state board of health on account of the influenza epidemic; that she was ready and willing to teach during all the time, and did teach 14 days of said two months, and regularly made and filed schedules as provided by law. She claimed pay for the entire 2 months the school was closed. Appellant refused payment and tendered her $33 for the 14 days she actually taught. She refused to accept it and sued for $100-the salary for the 2 months. It was stipulated:

‘That the only question to be determined is whether a teacher so employed is entitled to compensation when prevented from teaching because of the school being closed because of a public epidemic, while the teacher is ready, able, and willing to teach.’

The general rule established by all the decisions is that, where performance of the contract is rendered impossible by act of God or the public ememy, the district is relieved from liability, but where the school is closed on account of a contagious disease, or destruction of the school building by fire, and the teacher is ready and willing to continue his duties under the contract, no deduction can be made from his salary for the time the school is closed. School Town of Carthage v. Gray, 10 Ind. App. 428, 37 N. E. 1059;Dewey v. Alpena School District, 43 Mich. 480, 5 N. W. 646,38 Am. Rep. 206;Libby v. Douglas, 175 Mass. 128, 55 N. E. 808;Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S. W. 621;Smith v. School District, 89 Kan. 225, 131 Pac. 557, Ann. Cas. 1914D, 139;Board of Education v. Couch, 63 Okl. 65, 162 Pac. 485, 6 A. L. R. 740;McKay v. Barnett, 21 Utah, 239, 60 Pac. 1100,50 L. R. A. 371; 35 Cyc. 1099.

Appellant contends the above rule only applies where the school is closed by the school authorities, and has no application where the school is closed by order of the state board of health. It is argued that the statute of this state gives the state board of health supreme authority in matters of quarantine for the preservation of the public health, and makes it the duty of local boards and officers to enforce the rules and regulations established by the state board of health, and provides penalties for a refusal to obey such rules and regulations; that the order closing the school was in obedience to the authority of the state board of health, and was not the voluntary act of appellant, and such closing of the school released appellant from liability during the suspension of the school. In the Michigan, Massachusetts, and Utah cases the schools were closed by the school authorities and all of them announced the general rule above stated. The Supreme Court of Michigan said, in the case above cited, that the closing of the school was wise and timely, but afforded no defense to the action of the teacher for salary during the time it was closed; that to relieve the district of liability it must appear performance of the contract was made impossible by act of God. The court said the contract was positive; that it did not stipulate the right to discontinue the pay of the teacher if the school was closed to prevent the spread of a contagious disease in the community, and it could not be regarded as subject to such a condition. In Libby v. Douglas, supra, the school was closed by the school authorities on account of an epidemic of diphtheria. The court held the district was liable to the teacher for the time the school was suspended. The court said the defendants might have stipulated against liability in such a contingency, but in the absence of such a stipulation the teacher was entitled to recover. In School Town of Carthage v. Gray, supra, the school was closed by order of the county board of health on account of an epidemic of diphtheria, and the court held the teacher was entitled to recover for such time. The court referred at length to Dewey v. Alpena School District, supra, and said:

‘It seems to us that if this case is well considered (and we think it is) it can make no difference whether the order was made by the school authorities themselves or by the board of health. In either case it will be presumed that it has been propery made, until the contrary appears. But the closing of a school by the order of a school board or a board of health is not the act of God, however prudent and necessary it may have been to make such order. It was one of the contingencies which might have been provided against by the contract, but was not.’

In Board of Education v. Couch, supra, the school was closed by the board of health acting under authority conferred by statute on account of an epidemic of smallpox, and a teacher sued for his salary for the time the school was closed. The...