Stokes v. Newell

• Decision Date: 27 January 1936
• Docket Number: 32053
• Citation: 174 Miss. 629,165 So. 542
• Court: Mississippi Supreme Court
• Parties: STOKES v. NEWELL et al

165 So. 542

174 Miss. 629

STOKES v. NEWELL et al

No. 32053

Supreme Court of Mississippi

January 27, 1936

Division B

Suggestion Of Error Overruled March 9, 1936.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by Clara Stokes against H. T. Newell and others. From a judgment dismissing the action, the plaintiff appeals. Reversed and remanded.

See also, 172 Miss. 289, 159 So. 540.

Reversed and remanded.

Butler & Snow, of Jackson, for appellant.

That a party to a contract has a property right therein, which a third person has no more right, maliciously, to deprive him of, or injure him in, than he would to injure his property, real or personal, and that, therefore, such an injury amounts to a tort, for which the injured party may seek compensation, by an action in tort for damages is so thoroughly well-settled by the modern authorities, including the Mississippi cases, to be practically beyond question.

15 R. C. L., Title Interference with Trade or Calling, pages 42-90; Page on Contracts, sections 2412-27, 2428-9; 2 Cooley on Torts (3 Ed.), pages 589-598; 2 Cooley on Torts (4 Ed.), secs. 227, 230; 16 Am. & Eng. Ency. Law, 1109 et seq.; Globe & Rutgers Insurance Co. v. Firemen's Fund Ins. Co., 97 Miss. 148; Campbell v. Warick, 142 Miss. 510; McCandless v. Clark, 159 So. 542; Hood v. Dorroh, 75 Miss. 257; Whitehurst v. Smith, 170 Miss. 535.

It is equally well-settled that the word "malice," or "maliciously" as here used, means "merely intentional doing of a wrongful act, without legal justification, or excuse, or, in other words, the wilful violation of a known right."

15 R. C. L. 56; 2 Cooley on Torts (4 Ed.), sec. 227; Page on Contracts, sec. 2414.

It is thoroughly settled that, to prevent one from performing a contract by maliciously interfering therewith, is within the same rule.

Page on Contracts, sec. 2448.

It is clear that, upon appellant's election, she became vested with a valuable right which could not be arbitrarily denied her.

Brown v. Owen, 75 Miss. 319; Whitman v. Owen, 76 Miss. 783; State v. Morgan, 141 Miss. 585; State v. Alexander, 158 Miss. 527; McCandless v. Clark, 159 So. 542, 172 Miss. 315; Whitehurst v. Smith, 170 Miss. 535, 155 So. 683; 56 C. J. 388-9, sec. 315.

The declaration in this case not only alleges that appellant was duly elected for the term in question, but, also, avers that appellant was notified of her election and thereupon accepted said employment and with the knowledge of the defendants entered upon the discharge of the duties of her position.

It is true that the declaration does not show that a written contract was executed, but no written contract is required in cases of this kind.

Section 6665, Code of 1930.

In the absence of statute requiring the contract to be in writing, an oral contract is sufficient.

56 C. J. 392; Page on Contracts, sec. 1635; 6 R. C. L. 639; 13 C. J. 303.

The declaration shows the board had classified its teachers and had adopted a schedule of salary for teachers in each class. That, under the classification and schedule then in force, appellant was entitled to a salary of one thousand six hundred dollars per annum, payable monthly.

The right secured by her election was as sacred and as valuable a right as one conferred by a written contract. While the right to an office may, strictly speaking, be said not to be a property right, it is a valuable one, and one which the courts will protect.

2 Cooley on Torts (4 Ed.), sec. 245; 22 R. C. L. 545; McAfee v. Russell, 29 Miss. 84; Bowlin v. Franklin County, 152 Miss. 534.

The question now is whether the individuals composing the board and the superintendent, purporting to act in their official capacities, are personally liable.

If they were acting in a ministerial capacity, there could be no doubt of their liability.

23 Am. & Eng. Ency. of Law, 377; 46 C. J. 1044; 22 R. C. L. 483; Kendall v. Stokes, 3 How. 89, 11 L.Ed. 506, 833; Farr v. Thompson, 11 Wall. 139, 20 L.Ed. 102.

And, if it be said that appellees were acting in a judicial or quasi-judicial capacity, they are, nevertheless, liable because their act was arbitrary, wrongful, and without legal right and for purely personal and political motives, and malicious. It was not for the purpose of promoting the public service.

National Surety Co. v. Miller, 155 Miss. 115, 123; McCandless v. Clark, 159 So. 542; Kendall v. Stokes, 3 How. 89, 11 L.Ed. 506; Wilkes v. Dinsman, 7 How. 89, 12 L.Ed. 618; 22 R. C. L. 485-6; 46 C. J. 1043-4; 22 Am. & Eng. Ency. of Law, 375-7; Whitehurst v. Smith, 170 Miss. 535.

Under such circumstances, even though the act is judicial in its nature, appellees would not be protected.

Stiles v. Morse, 233 Mass. 174, 123 N.E. 615, 4 A.L.R. 1365.

Watkins & Eager and W. E. Morse, all of Jackson, for appellees.

The pleading is construed most strongly against the pleader.

Nester v. Davis, 100 Miss. 199, 56 So. 347; Odom v. G. & S. I., 101 Miss. 642, 57 So. 626; I. C. R. R. v. Middleton, 109 Miss. 199, 68 So. 146; Y. & M. V. v. Craig, 118 Miss. 299; Co-operative Oil Co. v. Greenwood Agency Co., 148 Miss. 536, 114 So. 397.

The declaration fails to state a cause of action.

If the plaintiff had been given a judgment by default, this judgment could not stand as the declaration is now drawn for the reason that it would have to be against the board of trustees of the Jackson separate school district.

The plaintiff claims to have a contract, but no consideration was ever agreed upon. It is Hornbook law that requires no citation of authority to state that it is necessary in any contract for a consideration to be agreed upon. There was no meeting of the minds of the parties under the facts stated in the declaration.

The court properly sustained the demurrer to appellant's declaration.

15 R. C. L., pages 42 and 90, sec. 16; McCandless v. Clark, 159 So. 542; State to use of Lincoln County v. Green, 111 Miss. 32, 71 So. 171; Trantham v. Russell, 158 So. 143; Stokes v. Newell et al., 159 So. 540.

Appellant attempts to take the rule as laid down in 56 C. J. that suits his case and ignores the portion of the law which states where a contract is required to be in writing, that it must be in writing or it is no contract. Appellant states that she entered upon the discharge of her duties, but this statement is contrary to the allegation that her contract began in September, 1933, and expired in July, 1934.

There is no Mississippi case stating that a contract with a teacher does not have to be in writing.

There was no salary agreed upon. The board could not have entered upon the terms of employment before the time began. There was no meeting of the minds.

The appellees who composed the board of trustees and the superintendent of the Jackson separate school district are not liable to the appellant.

The statutes confer upon the board of trustees jurisdiction to employ principals and teachers, fix salaries, prescribe duties, subject to certain state school laws, county school laws and laws of the municipality.

Pigeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Redditt v. Wall, 55 So. 45, 34 L.R.A. (N.S.) 153; City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682.

In the absence of a valid statute imposing liability therefor, a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents or employees.

Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 36 L.R.A. 798, 60 Am. St. Rep. 516; Nugent et al. v. Board of Levee Commissioners, 58 Miss. 197; Harrison County v. Marione, 110 Miss. 592, 70 So. 702; Ayres v. Board of Trustees, 98 So. 847.

The rule appears to be established that a public officer, who is a member of a corporate body upon which a duty rests, cannot be held liable for the neglect of duty of that body. If there be refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the official action of the board itself as an entity.

22 R. C. L., page 487; Hydraulic Press Brick Co. v. School District, 79 Mo.App. 665; Bassett v. Fish, 75 N.Y. 303; Monnier v. Godbold, 116 La. 165, 40 So. 604, 5 L.R.A. (N.S.) 463, 7 Ann. Cas. 768; Blanchard v. Burns, 110 Ark. 515, 162 S.W. 63, 49 L.R.A. (N.S.) 1199; Reeves v. Isola State Bank, 105 So. 636; Pigeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251.

OPINION

Ethridge, P. J.

The appellant, Miss Clara Stokes, filed a declaration in the circuit court of Hinds county against H. T. Newell, W. H Pullen, Jr., B. B. McClendon, John C. Batte, and Mrs. J. K. McDowell, individually and as composing the board of trustees of the municipal separate school district of Jackson, Mississippi, and James G. Chastain, Jr., individually and as superintendent of the schools of said district. She set forth the creation of said district, and alleged that she is, by profession, a school teacher and administrator, holding, since September, 1918, a first-grade license or certificate from the superintendent of Hinds county and from the state board of examiners to teach in this state; that she was regularly elected and employed by the board of trustees in teaching and school administrative work in the Central High and Junior High Schools in said district since said date, and was so elected and employed as principal of the Central Junior High School for the term 1933-34, at an annual salary of one thousand six hundred dollars, payable monthly at the rate of one hundred...