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95 Ore. 644 *; 188 P. 712 **; 1920 Ore. LEXIS 75 ***
CRANE v. SCHOOL DISTRICT No. 14.
Prior History: [***1] From Tillamook: GEORGE R. BAGLEY, Judge.
The complaint alleges that prior to August 26, 1918, by a majority vote of its legal electors the defendant was authorized to furnish transportation to all of the pupils in the district living more than two miles distant from the school building, and:
"That on or about August 26, 1918, said school district, acting through its district school board, employed plaintiff to transport the pupils of defendant district to and from the school of said district for a term of nine school months, beginning on September 16, 1918, and agreed to pay plaintiff therefor at the rate of $ 95 per school month, payable monthly."
It is then alleged that plaintiff accepted and entered into the performance of the contract, but that the defendant, on or about October 14, 1918, closed its school and did not reopen it until about February 10, 1919, and:
"That during the time said school was so closed the plaintiff was at all times ready, able and willing to furnish the transportation provided for in said contract, and held himself in readiness at all of said time so to do; that the closing of said school during said period was not at the [***2] request or with the consent of plaintiff, nor with any agreement that his said contract of employment should be in any way modified."
The plaintiff says that the defendant paid him $ 95 for the first month's services, but has failed and refused to pay him anything for the four months beginning October 14, 1918; that about February 8, 1919, he presented an itemized account, but that the claim was considered about April 24, 1919, when the defendant wrongfully disallowed it. He asks judgment for $ 380.
The defendant filed a motion to strike out paragraph III of the complaint, first above quoted, "for the reason that the same is irrelevant, incompetent and immaterial." "And in case the court overrules the said motion to strike, the defendant moves that the complaint be made more definite and certain by setting forth therein the date on which was held the alleged meeting, which, it is alleged, authorized the school board of said district to furnish the transportation mentioned in paragraph II of the complaint." Both motions were denied. A demurrer to the complaint was then filed, "for the reason that the same does not allege facts sufficient to constitute a cause of action." This [***3] also was overruled. The defendant then answered, admitting:
"That on or about August 26, 1918, the plaintiff proposed to defendant and offered to transport the pupils of the defendant school district to and from school of said district during the school year of 1918 and 1919 for the sum of ninety-five ($ 95) dollars per month, and the defendant accepted said offer and proposal under the conditions as hereinafter stated in the further and separate answer and not otherwise."
The closing of the school from October 14, 1918, to February 10, 1919, the payment of $ 95 to the plaintiff for the first month's service by him, and the rejection of his claim of $ 380 are also admitted.
As a further and separate answer the defendant alleges that about August 26, 1918, the plaintiff proposed and offered to transport pupils "to and from the school of said district during the school year of 1918-19, for the sum of $ 95 per month, and the defendant accepted said offer and proposal." It is next averred that the contract was entered into with the understanding that the school would open about September 16th, and would continue in session, in the usual and ordinary course, for the entire [***4] school year; and that it "would not be suspended or interrupted by extraordinary casualty, operation of law, orders or directions from authorities of the state or federal government, or other causes, over which neither party had control and for which neither party was responsible." It is averred that about October 1, 1918, there was a dangerous epidemic of influenza in the school district and in Tillamook County, which continued until about February 10, 1919;
"That on or about October 8, 1918, Rupert Blue, Surgeon General of The United States Public Health Service, acting by virtue of his office, and under the authority of law made and promulgated the following order, and directed the same to the State Health Officer of all the States of the United States of America, including the State of Oregon, in words and figures as follows:
"Public Health Service will mobilize with the aid of Volunteer Medical Service Corps all outside medical aid required in combating the present influenza epidemic. The American Red Cross upon specific request from this service will mobilize nursing personnel and furnish necessary emergency hospital supplies which cannot be obtained otherwise. Inform [***5] all city and county health officers in your State that all appeals for aid must be made to the State Board of Health which will make requests of the Surgeon General of the Public Health Service whenever local needs require. Whenever necessary Public Health Service will establish and distribute on medical and nursing service.
"Surgeon-General U.S. Public Health Service.
"That shortly after said date the Acting State Health Officer of the State of Oregon, acting in obedience to said order and to the order of the State Board of Health of Oregon and by virtue of his office, and by authority of the laws of Oregon, issued and directed to Dr. R. T. Boals, County Health Officer of Tillamook County, Oregon the following order, to wit:
"'Portland, October 8, 1918.
"'Dr. R. T. Boals, County Health Officer,
"'By order of the Surgeon General of the United States Public Health Service, you are directed in case of the appearance of an outbreak of influenza in your community to discontinue all public meetings and close all schools and places of public amusement. Report immediately any cases occurring.'"
Then [***6] follows a copy of the above order of the surgeon-general. This letter is signed by Robert E. L. Holt, Acting State Health Officer.
The answer further alleges:
"That thereafter, on or about the 14th day of October, 1918, said Dr. R. T. Boals, as such County Health Officer, and by virtue of his office and by authority of law, ordered and directed the Superintendent of Schools and the directors of school districts, including defendant, to close and discontinue the schools of Tillamook County, Oregon, including defendant's said school, to be closed and suspended until further notice, and in obedience of said orders, and authority, and not otherwise, the school of the defendant school district were closed and wholly suspended from that date until on or about the 10th day of February, 1919. That during said time plaintiff did not and could not perform any service or duty under the contract, because there was no school to be attended, and no pupils to be transported to or from such school and thereby the subject matter of the agreement between the parties for the said period of suspension ceased to exist, and this without the fault of either of the parties in this action.
"That [***7] this period of suspension is the same period for which plaintiff claims compensation, and that at the expiration thereof, by permission of the authorities hereinbefore mentioned, the defendant resumed and reopened its said school, and thereupon plaintiff resumed his duties under said agreement, and is now performing duties and services thereunder."
The plaintiff demurred to the further and separate answer, "for the reason that the same does not state facts sufficient to constitute a defense." This was sustained by the court. The defendant refused to plead further. A jury was waived, and the court made findings of fact sustaining the allegations of the complaint, particularly paragraph III above quoted. Based thereon, judgment was rendered in favor of the plaintiff for $ 380, and the defendant appeals, claiming that the court erred in overruling its motion to strike and the motion to make more definite and certain, in sustaining the demurrer to the further and separate answer, and in failing to permit the defendant to allege and prove the facts therein stated. AFFIRMED.
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