Spruill v. Davenport

• Decision Date: 22 October 1919
• Docket Number: 67.
• Citation: 100 S.E. 527,178 N.C. 364
• Parties: SPRUILL v. DAVENPORT ET AL.
• Court: North Carolina Supreme Court

100 S.E. 527

178 N.C. 364

SPRUILL v. DAVENPORT ET AL.

No. 67.

Supreme Court of North Carolina

October 22, 1919

Appeal from Superior Court, Washington County; Devin, Judge.

Action by Sallie Spruill against J. F. Davenport and others, members of School Committee. Judgment for plaintiff against defendants individually, and the latter appeal. Reversed.

When fair interpretation of statute directing acts to be done in a certain way shows the Legislature intended compliance to be essential to validity, or when some antecedent conditions must exist prior to the exercise of power, or must be performed before other powers can be exercised, the statute must be regarded as mandatory, or when the provision relates to acts or proceedings immaterial in themselves, but contains negative or exclusive terms, the statute becomes imperative and requires strict performance.

There is no absolute formal test for determining whether a statutory provision is to be considered mandatory or directory, but the meaning and intention of the Legislature must govern, being ascertained not only from the phraseology but from consideration of the nature of the provision, its design, and the consequences of different constructions.

Civil action, tried before Devin, J., and a jury, at July term 1919, of Washington superior court.

The plaintiff sued for damages, alleging that she had been employed as a teacher in Cherry school district, and that after she had served for less than a month, she was dismissed by the defendants, members of the school committee. She asks judgment for $360, her salary for the full term of nine months at $40 per month. It being discovered that the complaint stated no cause of action, there being no allegation of fraud or malice, the plaintiff, by leave of the court, amended her pleadings, and further alleged that she was willfully and maliciously dismissed by the defendants, as school committeemen. The court submitted the following issues:

"(1) Did the defendants wrongfully remove the plaintiff and prevent her from teaching the school at Cherry?

(2) If so, what damage, if any, is the plaintiff entitled to recover therefor?"

The jury answered the first issue, "Yes," and the second issue, "$280.00 with interest." Upon this verdict, the court rendered a personal judgment against the defendants, and not a judgment against them as school committeemen in their corporate capacity.

Defendants appealed.

Ward & Grimes, of Washington, N. C., for appellants.

Zeb Vance Norman, of Plymouth, for appellee.

WALKER J.

The first issue was not in proper form. A public officer is not personally liable in damages for an act done in the line of his duty. Robinson v. Howard, 84 N.C. 152. There it was held that a school committeeman was not liable personally on a contract by which he employed a teacher, and that the remedy was by mandamus to compel the payment of the money by the proper officer in the way provided by law. Though the act is wrongful and malicious, an action will lie against the officer in his personal capacity to recover damages for the wrong committed by him.

"It is a principle well established that when a person, corporation, or individual is doing a lawful thing in a lawful way, his conduct is not actionable, though it may result in damage to another; for, though the damage done is undoubted, no legal right of another is invaded, and hence it is said to be damnum absque injuria. Dewey v. R. R., 142 N.C. 392 ; Thomason v. R. R. (Plaintiff's appeal), 142 N.C. 318 ; Oglesby v. Attrill, 105 U.S. 605 . In such cases the motive prompting the act, however reprehensive or malicious, is not, as a rule, relevant to the inquiry." White v. Kincaid, 149 N.C. 416, 419, 63 S.E. 109, 111 (23 L. R. A. [ N. S.] 1177, 128 Am. St. Rep. 663).

It was said in Hipp v. Ferrall, 173 N.C. 167, 169, 91 S.E. 831, 832, to be the law of this state:

"That public officers, in the performance of their official and governmental duties involving the exercise of judgment and discretion, may not be held liable as individuals for breach of such duty unless they act corruptly or with malice"--citing Templeton v. Beard, 159 N.C. 63, 74 S.E. 735, and Baker v. State, 27 Ind. 485.

See, also, Scott v. Fishblate, 117 N.C. 265, 23 S.E. 436, 30 L. R. A. 696; Burton v. Fulton, 49 Pa. 151; Stewart v. Southard, 17 Ohio, 402, 49 Am. Dec. 463; Reed v. Conway, 20 Mo. 22; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256; Jenkins v. Waldron, 11 Johns. (N. Y.) 114, 6 Am. Dec. 359; Harmon v. Tappenden, 1 East, 563; Cullen v. Morris, 2 Stark. 577.

The law does not inquire into the wisdom or expediency of the official act. Oglesby v. Attrill, supra. That is committed to the sound judgment and discretion of the officer, and it is only when he goes outside of his line of duty and acts, as is said in Hipp v. Ferrall, supra, "corruptly or with malice," that he becomes liable for the consequent damages.

The defendants contend, on this ground, that the issue is not sufficient in form to sustain the judgment, as it does not appear therefrom that the dismissal was caused by either corruption or malice. It might have been "wrongful," if there was a mere breach of contract; but this would confine liability to the school district or to the board in its corporate character, and it would not extend to the individual members. More must appear to make them liable. Morrison v. McFarland, 51 Ind. 206; Adams v. Thomas, 12 S.W. 940, 11 Ky. Law Rep. 701. The case of Robinson v. Howard, supra, is of a like kind. The issue, as framed, was not, therefore, sufficient as a basis for the judgment, as it should have included the element of malice or corruption. Ruffin v. Garrett, 174 N.C. 134, 93 S.E. 449. The passage quoted by plaintiff's counsel from 35 Cyc. 1095, does not sustain the position that the members of the board are liable individually. It says:

"Where a school teacher is wrongfully removed or dismissed before the expiration of his term of employment, he is entitled to recover from the school district, or the school board, the damage he has sustained by reason of the breach of his contract, as where he is dismissed without a sufficient cause, or without the cause of his dismissal being ascertained and shown in the manner prescribed, by statute, as without a hearing."

It is apparent what is meant, and that the author is referring to corporate liability. This is made perfectly clear by this statement of the law, almost immediately following the other one in the same paragraph:

"Where the violation of a contract is by the school officers in their official capacity they are not personally and individually liable therefor, unless they act maliciously," citing Morrison v. McFarland, supra; Gregory v. Small, 39 Ohio St. 346; Burton v. Fulton, 49 Pa. 151; Adams v. Thomas, supra--and these cases fully support the text.

It is well settled that while issues are sufficient, if they present the material matters in dispute and afford each of the parties a fair and reasonable opportunity to develop his case to the jury, they must always be so framed and answered as to warrant the judgment. Hatcher v. Dabbs, 133 N.C. 239, 45 S.E. 562; Strauss v. Wilmington, 129 N.C. 99, 39 S.E. 772. The defect in the issue would involve a new trial, as no malice or corruption is found. The charge of the court is not in the record.

But there is another obstacle in the plaintiff's way and fatal to her recovery. If she was not properly and legally appointed to the position of teacher in the Cherry school, it was not only the right, and within the power, of the committee to dismiss, but it was their official duty to do so, and, if they were exercising a rightful power, their motive, even if a bad one, cannot be considered, as we have shown heretofore. It is then a correct position that, if she was not legally appointed, or "elected," it is a full answer to her action for damages against the individuals of the board, as the dismissal was not, in any sense, a wrongful one, but instead was a proper thing done "in the line of their duty." This very question was before the court in Gregory v. Small, 39 Ohio St. 346, 348, which we have already cited for another purpose. The court there held:

"If there was not a legal contract of employment, the teacher had no right to teach the public school, and the directors in their official capacity might dismiss him, and put a teacher duly employed in possession of the schoolhouse. The common-law right of action for dismissal is founded on a valid contract of employment. When an officer acts

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