Whitehead v. North H. Sch. D

• Decision Date: 09 November 1891
• Docket Number: 88
• Parties: J.E. WHITEHEAD v. NORTH H. SCH. D
• Court: Pennsylvania Supreme Court

22 A. 991

145 Pa. 418

J.E. WHITEHEAD v. NORTH H. SCH. D

No. 88

Supreme Court of Pennsylvania

November 9, 1891

Argued October 8, 1891

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY.

No. 88 October Term 1891, Sup. Ct.; court below, No. 586 May Term 1888, C.P.

On April 28, 1888, Jacob E. Whitehead brought assumpsit against the school district of North Huntingdon township. The plaintiff's statement of claim, verified by his affidavit and filed with the praecipe, averred in substance that by a contract in writing the defendant school district employed the plaintiff to teach in Byerly school house No. 4, for a term of seven months beginning in September, 1887, at a salary of $40 per month; that the plaintiff entered upon the performance of his duties as a teacher at said schoolhouse on September 12, 1887, and continued to discharge the same until December 19, 1887, when he was dismissed and ousted from his school by the defendant, without reasonable cause and for none of the causes specified in paragraph V., § 23, act of May 8, 1854, P.L. 622; that during all the term specified in the contract the plaintiff was ready and willing and able to perform his part thereof, and by reason of his dismissal and ouster he had been damaged in the sum of $160. Appended to the statement of claim was an account charging the defendant with seven months' salary, at $40 per month $280, and giving credit for cash paid on account, $120. A copy of the written contract was also appended. It purported to be signed on behalf of the defendant by John Wilson president of the board of school directors, and countersigned by A. Locke, secretary.

The defendant filed an affidavit of defence, averring, in substance, that the plaintiff was charged on November 2 1887, with having inflicted cruel and severe punishment and treatment on Mary Billingsly, a pupil in the school taught by him, and that after an investigation of the charge the board of school directors, convened in session on November 12, 1887, requested the plaintiff to resign his position as teacher; that the plaintiff refused to resign, and on November 17, 1887, the board of directors, by unanimous resolution, dismissed him from his employment as teacher, the dismissal to take effect at the end of said month, of which dismissal the plaintiff had due notice, and if he continued to teach said school thereafter, until December 19th, he did so in violation of the action of the directors as aforesaid, and contrary to the notice so given him; that, under and by virtue of the contract upon which the plaintiff's action was brought, there was reserved to the board of directors the right to dismiss the plaintiff for any of the causes specified in paragraph V., § 23, act of May 8, 1854, P.L. 622, one of which is cruelty; "and in pursuance of the power and discretion vested in them by the above-recited act of assembly, the terms of said contract and in discharge of their duties as directors, they having dismissed the said plaintiff as aforesaid from his employment aforesaid for the cause of cruelty, so as aforesaid investigated and established, they deny any and all liability of the defendant to the plaintiff as alleged in his affidavit of claim."

The defendant subsequently pleaded non assumpsit, with leave to give in evidence the special matter contained in the affidavit of defence, the same being referred to and made part of the plea.

Among the Rules of the court below were the following:

"6. In actions founded upon deed, bond, bill, note or other instrument of writing, a copy of which shall be filed with or before the declaration, it shall not be necessary for the plaintiff on the trial to prove the execution thereof, or the handwriting of the makers, drawers, indorsers or acceptors thereof; but the same shall be taken as admitted, unless the defendant by affidavit, filed with or before his plea, shall deny that the same was executed by him or with his authority, or that the handwriting is the proper handwriting of said parties."

"8. If the plaintiff shall file, on or before the return day of the writ, a specification of the items of his claim and a statement of the facts necessary to support it, verified by affidavit, such items of the claim and material averments of fact as are not directly traversed or denied by the affidavit of defence shall be taken as admitted."

At the trial, on March 5, 1890, the plaintiff offered in evidence the contract set out in the statement of claim, as having been admitted by the pleadings. The court, overruling an objection by defendant's counsel, admitted the offer, whereupon the contract was read to the jury. The plaintiff then testified that in pursuance of that contract he taught the Byerly school from September 12, to December 19, 1887, when the directors told him to cease teaching and demanded the key from him; and that for the time he actually taught there was owing to him from the school district $132, of which he had been paid $120. On cross-examination, he stated that he had been called before the board for a hearing in regard to some trouble in the school, before he was notified to quit teaching.

The plaintiff's case being rested, the defendant called Mary Billingsly and made the following offer:

Defendant's counsel propose to prove by the witness on the stand, who is the young girl on whom the cruelty, as is charged by the defendant, was committed, the conduct of the teacher in the school at the time; to establish and show for what purpose he was discharged by the directors: for the purpose of showing justification of the conduct on the part of the directors, and to show further that the plaintiff is not entitled to recover under the contract.

Objected to, as incompetent and irrelevant.

By the court: Objection overruled, offer admitted; exception.

The witness then testified that she was a pupil in the Byerly school; that the plaintiff on November 2, 1887, knocked her down by striking her on the face, rendering her insensible, and causing her face to swell so as to entirely close one of her eyes. Other witnesses testified for the defendant in corroboration of this testimony.

The defendant called also John Wilson, the president of the board of school directors, and proposed to show by him the nature and character of the investigation of the charges of cruelty preferred against the plaintiff; how the investigations were conducted, and when the teacher, the plaintiff, was dismissed by the board, and for what reason: this for the purpose of showing that the defendant complied with the law in the hearing and investigation, and that the plaintiff was dismissed properly and legally; and to show that the contract produced in evidence is void thereby.

To which offer counsel for the plaintiff objected because it was incompetent and irrelevant: (1) Because the only evidence of dismissal which the law recognized is the minutes of the board of directors. (2) Because it was incompetent and irrelevant whether the board acted upon sufficient or insufficient evidence, so that the board, as such, took action in the manner directed by the act of assembly. (3) The minutes of the board were the best evidence, and secondary evidence was not admissible when the minutes themselves might be produced.

By the court: Objection overruled; exception.

The testimony of this witness was substantially to the same effect as the averments contained in the affidavit of defence and he was corroborated by other members of the board.

The defendant offered in evidence a minute of the board of school directors, reading as follows:

"Mr. J. E. Whitehead, teacher at Byerly's, demanded a hearing of the board. After a long discussion of his case of cruelty, the board resolved to dismiss him, Mr. J. E. Whitehead, and notified him verbally that he should cease to teach at the end of November."

Objected to.

By the court: Offer admitted; exception.

The testimony being closed, the court, DOTY, P.J., charged the jury in part as follows:

The plaintiff alleges that the dismissal was illegal, and that it does not operate as a defence. This claim is based on the fourth section of the act of April 11, 1862. This section provides substantially as follows: That whenever a teacher is appointed or dismissed by any school board, it must appear that it was by the affirmative votes of a majority of the whole number of directors or controllers; and in such case the names of the members voting both in the affirmative and negative shall be so entered on the minutes of the board by the secretary. Now, it has been repeatedly held by the Supreme Court that in the appointment and dismissal of teachers in a school district, the provisions of the act of assembly must be strictly complied with. These minutes, therefore, in order to comply with this act of assembly, ought to show either the names of the members voting both in the affirmative and negative of the question of dismissal, or that all the school directors were present, and that the vote was unanimous upon that question. But these minutes do not show either the names of those voting upon the affirmative or negative of the question, nor do they show that the whole board was present and that the vote was unanimous. Nor was it competent, we now think, to introduce parol evidence to show that the whole board was present and that the vote was unanimous. The minutes ought to disclose this fact, if fact it be, upon their face.

[But this act of assembly, like any other rule of evidence, is intended to operate equally on all parties. The plaintiff is controlled by it as well as the defendant, and before the plaintiff can recover he must show that he was legally employed. Exhibiting a contract signed by himself and the...