Phelps v. School Dist.
Supreme Court of Illinois
February 22, 1922.
[*193] [**312] Mr. JUSTICE FARMER delivered the opinion of the court:
This is an appeal, on a certificate of importance, from a judgment of the Appellate Court affirming a judgment of the circuit court for $100 in favor of appellee. Appellee is a school teacher and was regularly employed by appellant to teach school at a salary of $50 per month. It is stipulated that during two months of the period for which she [*194] was employed the school was closed by order of the State Board of Health on account of the influenza epidemic; that she was ready and willing to teach during all the time and did teach fourteen days of said two months and regularly made and filed schedules as provided by law. She claimed pay for the entire two months the school was closed. Appellant refused payment and tendered her $33 for the fourteen days she actually taught. She [***2] refused to accept it and sued for $100, -- the salary for the two months. It was stipulated "that the only question to be determined is whether a teacher so employed is entitled to compensation when prevented from teaching because of the school being closed because of a public epidemic, while the teacher is ready, able and willing to teach."
The general rule established by all the decisions is, that ] where performance of the contract is rendered impossible by act of God or the public enemy the district is relieved from liability, but where the school is closed on account of a contagious disease or destruction of the school building by fire, and the teacher is ready and willing to continue his duties under the contract, no deduction can be made from his salary for the time the school is closed. Gear v. Gray, 10 Ind. App. 428; Dewey v. Alpena School District, 43 Mich. 480; Libby v. Douglas, 175 Mass. 128; Randolph v. Sanders, 22 Tex. Civ. App. 331; Smith v. School District, 89 Kan. 225; Board of Education v. Couch, (Okla.) 6 A.L.R. 740; McKay v. Barnett, 21 Utah, 239; 35 Cyc. 1099.
Appellant contends the above rule only applies [***3] where the school is closed by the school authorities and has no application where the school is closed by order of the State Board of Health. It is argued that the statute of this State gives the State Board of Health supreme authority in matters of quarantine for the preservation of the public health, and makes it the duty of local boards and officers to enforce the rules and regulations established by [*195] the State Board of Health and provides penalties for a refusal to obey [**313] such rules and regulations; that the order closing the school was in obedience to the authority of the State Board of Health and was not the voluntary act of appellant, and such closing of the school released appellant from liability during the suspension of the school. In the Michigan, Massachusetts and Utah cases the schools were closed by the school authorities and all of them announced the general rule above stated. The Supreme Court of Michigan said in the case above cited, that the closing of the school was wise and timely but afforded no defense to the action of the teacher for salary during the time it was closed; that to relieve the district of liability it must appear performance [***4] of the contract was made impossible by act of God. The court said the contract was positive; that it did not stipulate the right to discontinue the pay of the teacher if the school was closed to prevent the spread of a contagious disease in the community and it could not be regarded as subject to such a condition. In Libby v. Douglas, supra, the school was closed by the school authorities on account of an epidemic of diphtheria. The court held the district was liable to the teacher for the time the school was suspended. The court said the defendants might have stipulated against liability in such a contingency, but in the absence of such a stipulation the teacher was entitled to recover. In Gear v. Gray, supra, the school was closed by order of the county board of health on account of an epidemic of diphtheria, and the court held the teacher was entitled to recover for such time. The court referred at length to Dewey v. Alpena School District, supra, and said: "It seems to us that if this case is well considered, (and we think it is,) it can make no difference whether the order was made by the school authorities themselves or by the board of health. In [***5] either case it will be presumed that it has been properly made until the contrary appears. But the closing of a school by the order of a school board [*196] or a board of health is not the act of God, however prudent and necessary it may have been to make such order. It was one of the contingencies which might have been provided against by the contract but was not." In Board of Education v. Couch, supra, the school was closed by the board of health acting under authority conferred by statute on account of an epidemic of small-pox, and a teacher sued for his salary for the time the school was closed. The board of education set up as a defense that the school was closed by the board of health having legal authority to do so; that such order rendered the performance of the contract illegal for both parties and that no recovery could be had for the time the school was closed. The court held that in the absence of a stipulation in the contract that the plaintiff should have no compensation during the time the school was suspended by the board of health the district was liable. The same ruling was made in Randolph v. Sanders, supra, where the school was temporarily [***6] closed by authority of the health officers of the State, city and county. Montgomery v. Board of Education, (Ohio) 131 N.E. 497, was a case where the board of education made a contract with a person to convey pupils to and from schools for eight and one-half months. The school was temporarily closed, pursuant to an order of the local board of health, on account of an epidemic of influenza, and plaintiff claimed pay for the time the school was closed. The court said that the view that he was entitled to pay during that time was amply supported by reason and authority; that the same rule applied as in the case of a teacher and that the contingency might have been provided against by the contract, but that the law would not insert by construction an exception for the benefit of one of the parties which they had omitted from the contract. Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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302 Ill. 193 *; 134 N.E. 312 **; 1922 Ill. LEXIS 1209 ***; 21 A.L.R. 737
GLADYS PHELPS, Appellee, vs. SCHOOL DISTRICT No. 109, Appellant.
Prior History: [***1] APPEAL from the Appellate Court for the Fourth District; -- heard in that court on appeal from the Circuit Court of Wayne county; the Hon. J. C. EAGLETON, Judge, presiding.
Disposition: Judgment affirmed.
board of health, teacher, contingency, epidemic, school authorities, parties, teach, board of education, salary
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