Smith v. School Dist. No. 18, Pondera County

• Decision Date: 02 July 1943
• Docket Number: 8362.
• Citation: 139 P.2d 518,115 Mont. 102
• Parties: SMITH v. SCHOOL DIST. NO. 18, PONDERA COUNTY.
• Court: Montana Supreme Court

139 P.2d 518

115 Mont. 102

SMITH v. SCHOOL DIST. NO. 18, PONDERA COUNTY.

No. 8362.

Supreme Court of Montana

July 2, 1943

Appeal from Ninth Judicial District Court, Pondera County; R. M Hattersley, Judge.

Action by Joseph R. Smith against School District No. 18, Pondera County, Montana, a body corporate, for loss of salary sustained by plaintiff when he was allegedly wrongfully prevented by defendant from occupying his position as public school teacher. Judgment for defendant, and plaintiff appeals.

Reversed with directions.

MORRIS J., and JOHNSON, C.J., dissenting.

Swanberg & Swanberg, of Great Falls, for appellant.

D. W Doyle, of Conrad, for respondent.

ADAIR Justice.

This is an appeal from a judgment. Charging that respondent had wrongfully prevented him from occupying the position as teacher in the Valier public school to which he had been re-elected, appellant sued for loss of salary.

The appellant Joseph R. Smith taught the sixth, seventh and eighth grades in the public school in the town of Valier, Montana, for the seventh consecutive year. For six of such years, he also instructed the school band.

On April 12, 1939, after almost five years of uninterrupted service, appellant entered into a formal written contract with the Board of Trustees of the respondent, School District No. 18, of Pondera County, Montana, wherein is situate the public school of Valier. In this contract, appellant agreed "to teach in said school district for the period of 9 months, commencing on the 2nd day of September, 1939" at the salary of $1,305 payable $145 monthly.

Pursuant to such contract appellant continued, as theretofore, to teach the sixth, seventh and eighth grades and to instruct the band in the public school in the town of Valier. Before the expiration of the 9-month period mentioned in the contract and prior to the first day of May, 1940, the board of trustees of the respondent district, by letter, notified appellant that he had been re-elected for the ensuing school year at the same salary.

Pursuant to such letter, and without any formal contract, appellant continued to teach the upper grades and the band in the Valier public school for the school year of 1940-41.

Sometime prior to April 28, 1941, J. A. Tidyman, chairman of the board of trustees of the respondent district, without appellant's knowledge, talked with Mr. Arnst, chairman of the Fort Benton School Board, about placing appellant in a teaching position in the Fort Benton school for the ensuing year.

Thereafter and on either the 28th or 30th of April, 1941, Mr. Tidyman in conversation with appellant orally informed appellant that the board of trustees of the respondent district had decided not to reemploy appellant. Respecting this conversation, Mr. Tidyman testified: "I told him that the Board of Trustees had decided not to renew that year's contract. I thought there was a vacant position that he could get at Fort Benton. I offered to do anything in my power to assist him in procuring it. I had already taken the matter up with Mr. Arnst, chairman of the Fort Benton school board."

The Teacher Tenure Act (section 1075, Revised Codes of Montana, 1935) provides: "After the election of any teacher or principal for the third consecutive year in any school district in the state, such teacher or principal so elected 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 ***."

Of course, Mr. Tidyman's conversation with appellant did not comply with the mandate of the above statute. No minutes nor records of any of the proceedings of the board of trustees were either offered or introduced in evidence herein and it is undisputed that the board never, at any time, gave appellant any notice in writing.

Nothing came of the teaching position at Fort Benton about which Mr. Tidyman had talked although appellant interviewed the board of trustees at Fort Benton on May 12th and would have accepted the position there had it been available. The Fort Benton school board had the matter under consideration for a month, at the end of which time appellant was advised that there would be no vacancy to fill.

The board of trustees of the respondent district had agreed to appropriate and contribute the sum of $150 toward the operating expenses of the school band during the summer of 1941. Before delivering this money to the treasurer of the band and as a condition precedent Mr. Tidyman, chairman of the board, in July, 1941, sought to compel appellant to execute and deliver to him appellant's written resignation. This appellant declined to do.

Under date of August 13, 1941, being but a couple of weeks before the beginning of the school term, M. A. Lund, superintendent of the respondent district wrote appellant: "Your assignment for the school year 1941-42 if you remain in the employ of School District No. 18 will be as teacher in the Bullhead School."

Appellant declined to accept the assignment to teach the Bullhead School and promptly notified the board of trustees that he was "not qualified either by training or experience to teach an ungraded school in which there are lower grade pupils." Appellant also demanded that he be continued in the position he had held in the respondent district in the past.

The Bullhead school is about ten miles from the town of Valier. It is the one and only rural school in the respondent district. When school resumed in the fall of 1941 there were but five pupils in the school. At the time of the trial, the enrollment had reached a total of seven pupils of whom two were in the first grade, one in the second grade, one in the fifth grade, one in the sixth grade and two in the seventh grade.

Appellant owned no automobile. He had no means of transportation between his home and the Bullhead school. There were no accommodations at such school for appellant's family as the teacherage was but a one-room affair wholly inadequate and unsuitable to accommodate appellant's family consisting of his wife, his mother, and his three minor children all dependent upon him for their support and all residing with him in the town of Valier.

At no time during his teaching career had appellant taught any grades below the fifth. Appellant's courses of study and training at the State Normal College had all been to train and equip him for an educator in the upper grades and his entire experience had been in and with the upper grades. At the Bullhead school there would be no band to instruct.

Clearly under such circumstances neither the superintendent nor the board of trustees possessed any statutory right to assign appellant to a position for which he was not qualified. In re Womer (Appeal of Osceola Borough School District), 337 Pa. 349, 11 A.2d 146. Appellant was within his rights in declining the new offer so made him. Williams v. School District No. 189, 104 Wash. 659, 177 P. 635; Jackson v. Independent School District of Steamboat Rock, 110 Iowa 313, 81 N.W. 596.

The letter of August 13, 1941, assigning appellant to teach the Bullhead school, came at such a late date that appellant was wholly unable to obtain another suitable teaching position for the school year which was then but about two weeks away.

At the beginning of the school year on September 2, 1941, appellant presented himself for duty at the public school in Valier. Another teacher had been employed to take appellant's old position and appellant's offer to resume his duties at such school was rejected. Again on September 26th and October 24th, appellant returned to the public school in Valier and offered his services as a teacher therein but his offers were rejected. Appellant made demand upon the respondent district for the payment of his monthly salary and demand being refused on November 22, 1941, he commenced this suit to recover from the respondent district his salary of $1,305 less such sums as he would earn between September 2, 1941, and the close of the school year in 1942. On January 19th, appellant obtained a position as teacher at Basin, Montana, at $120 per month and at the opening of the trial he voluntarily reduced his demand against respondent to $706.50, having credited on the demand such sums as he had earned subsequent to September 2, 1941, and such amounts as he contemplated he would receive for teaching at Basin.

The respondent as defenses to the action, alleged: (1) that it had a right to assign appellant to teach the Bullhead ungraded country school because appellant was the holder of an elementary state teaching certificate which states that he is authorized to teach grades one to nine; (2) that had appellant been more diligent he could have obtained another teacher's position in another district and (3) that appellant waived the mandate of section 1075, Revised Codes, requiring that the board by a majority vote of its members shall "on or before the first day of May give notice in writing to said teacher."

We find no evidence of any lack of diligence on the part of appellant in his efforts to obtain another teaching position. The record indicates that appellant did his utmost to find other employment. We likewise find no evidence of any conduct on the part of appellant that amounts to a waiver of any of the provisions of the Teacher Tenure Act. § 1075, Rev. Codes.

Irrespective of the wording of appellant's elementary state teaching certificate, the evidence clearly shows that appellant had had no training nor experience in teaching any of the grades below the fifth; he so testified and the...