Dritt v. Snodgrass

Henry, J.

— The cause was commenced and final judgment entered upon demurrer to second amended petition in the circuit court of Moniteau county, Missouri. The record consists of the second amended petition, the separate demurrer of Snodgrass and Redmond, and the separate demurrer of Frederick, and the judgment of the court upon the demurrers.

The petition avers that Joseph E. Dritt is a minor, under "21 years of age — that John B. Dritt was appointed his next friend by the clerk of the circuit court of said county; hence this suit is prosecuted to the use of Joseph E. Dritt, by his next friend, John B. Dritt. The petition further avers that prior to the accruing of plaintiff’s cause of action the town of Tipton, in said county, had been duly incorporated, and a plat thereof filed and duly recorded in the recorder’s office of said county; and that prior to the accruing of plaintiff’s cause of action, by virtue of the laws of the State of Missouri authorizing cities, towns and villages to organize for school purposes, the said town of Tipton was organized as a single school district, and that it has been to this date an acting organization as such; that on, to-wit, the 20th day of January, 1875, and fora long time prior and since that date, the defendants, Isaac Snodgrass and "William Redmond, together with four other persons, each of whom, then being citizens and electors *290 within said school district, were duly elected and qualified school directors within said school district, and that they ■were for the period aforesaid the school directors of said school district; that the said school directors, hy virtue of the power and authority in them vested by law, had, prior to the date last aforesaid, established in said school district a school for the education of all the white children residing therein, between the ages of five and twenty-one years, and had employed g.s the teacher of said school, the defendant, P. A. Frederick, and that the said P. A. Frederick was a legally qualified teacher to teach said school; that for a long period of time prior and subsequent to the date last aforesaid, the said school was in session with the said P. A. Frederick as teacher therein, for the purpose of the instruction and education of the youth aforesaid within said school district, in the branches of education then being taught in said school, to-wit: reading, writing, spelling, orthography, grammar, geography, arithmetic and history; that at the date last aforesaid, and during all the time subsequent thereto to this date, plaintiff has resided in said school district ; that he was during all the time aforesaid, and is now, over 5 and under 21 years of age; and that he was then and is now, under the law, entitled to attend said school as a pupiL, and be instructed in the various branches of education then and there being taught in said school; that prior to the date aforesaid, and for a long period of time, and up to the said 20th day of January, 1875, he was a regular pupil and scholar in said school, and received instruction in the various branches of education aforesaid; that under the law of the State he had a right to continue in said school as a pupil, and that it was not only the duty of the directors to permit him to attend said school during all the time aforesaid, but to protect him in so doing; that on, to-wit, the 20th day of January, 1875, and while he was a pupil of said school and being instructed in the several branches of learning then being taught therein, the said Isaac Snodgrass and "William Redmond, together with *291 the other members of the school board aforesaid, and the said P. A. Frederick, teacher of said school, not regarding • their duties aforesaid,-wrongfully,-illegally, oppressively, willfully and maliciously, and in abuse of their authority as school directors and teacher aforesaid, did expel this plaintiff from said school for the following reason, and none other, to-wit: That the said plaintiff did, previous to the date aforesaid, in the evening, after said school had b.een dismissed for the day, attend a party composed of the young people of said town, and participate in the amusements thereof; that the said board of directors and teacher of said school had made a rule for the government of said school, prohibiting the scholars from attending such parties during the continuance of said school, and that it was for a violation of this rule that he Avas expelled; that-the said party was made up of invited guests, and that their conduct was strictly innocent, inoffensive and moral, tending only to social culture; that plaintiff was at the time about 17 years of age, and that he attended said party with the. permission of his father and mother, with Avhom he at the time lived; that he had a right to attend said party, and that the defendants had no right or authority to dictate to or control him in the premises, and that the act aforesaid of said defendants, was an abuse of any authority conferred upon them by the laws of this State; that the defendants have in manner and form aforesaid, ever since, to this date, prohibited the plaintiff' from attending said school, whereby the plaintiff', by the illegal, unlawful, willful, oppressive and malicious acts of defendants, Ires been deprived of the benefits of said school, and the instruction aforesaid therein, and asks damages in the sum of $1,000. The petition is signed by Joseph F. Dritt, by Rice and Smith, his attorneys.

The grounds of demurrer are, for Snodgrass and Redmond :

1st. Petition does not state facts sufficient to constitute a cause of action.

*292 2nd. It appears upon the face of said petition that the defendants were directors .of said school district, and were invested with discretionary authority to make and enforce all needful rules and regulations for the government and control of said school, and they cannot be made liable to plaintiff under the allegations of the petition.

3rd. Because it appears upon the face of the petition ■ that the plaintiff has not legal capacity to sue by attorney, and he does not appear by next friend.

Grounds off demurrer on the part of Frederick:

1st. Petition .does not state facts sufficient to constitute a cause of action against defendant.

2nd. It appears upon the face of said petition that the defendant was the teacher in the public school in the town of Tipton, employed by the board of education of said town, and as a matter of law he is not liable to plaintiff upon the facts stated in the petition — said school being under the .control and management of the board of education, and not of himself.

3rd. It appears upon the face of the petition that plaintiff has not legal capacity to sue by attorney, and he does not appear by next friend.

The court sustained each of said demurrers, and entered up final judgment thereon against the plaintiff for costs; whereupon the plaintiff brings the cause to this court by writ of error.

By Sec. 8, Wagner’s Stat., page 1264, it is provided, that the board of directors “ shall have power to make and enforce all needful rules and regulations for. the government, management and control of such schools and pi’operty, as they shall think proper, so that the same shall not be inconsistent with the laws of the land; and, generally, to do all lawful acts which may be proper and necessary to carry fully into effect the purposes of the act.” It appears, in this case, from the petition, that the directors had made a rule for the government of said school, prohibiting its pupils from attending social parties; that the plaintiff *293 had violated said rule, with the consent of his father and mother, and for so doing was expelled from the school, and he seeks to recover damages against the teacher and a portion of the directors for such expulsion. Is the action maintainable ? Plaintiff cites many authorities as sustaining his position, and we have carefully examined them, and also those cited by the defendant, and are fully satisfied that the weight of authority is against the plaintiff".

School directors are elected by the people, receive no compensation for their services, are not always, or frequently, men who are thoroughly inforihed as to the best modes of conducting schools. They are authorized, and it is their duty to adopt reasonable rules for the government and management of the school, and it would deter responsible and suitable men from accepting the position, if held liable for damages to a pupil expelled under a rule adopted by them, under the impression that the welfare of the school demanded it, if the courts should deem it improper. They are to determine what rules are proper, and who shall say that the rule adopted in this casé was harsh and oppressive ? I might think it was ; wiser men would maintain that it was proper and right, that pupils attending social paifies are liable to have their minds drawn off from their studies, and thus to be retarded in their progress ; but whether the rule was a wise one or not, the directors and teacher are not liable to an action for damages for enforcing it — even to the expulsion of a pupil who violates it. While this court might, on mandamus to compel the board and teacher to admit a pupil thus expelled, review the action of the board, and pass upon the reasonableness of the rule, which we do not, however, decide here, yet the doctrine that the courts could do this, is very different from that which would hold the directors liable in an action for damages for enforcing a rule honestly adopted for the maintenance of discipline in the school.. That such an action is not maintainable, is fully established by Donahoe v. Richards, 38 Me. 391; Spear v. Cummings, 23 Pick. *294 224; Stephenson v. Hall, 14 Barb. 222. Hodgkins v. Rockport, 105 Mass. 475, does not support tbe position for which it is cited by plaintiff. By the law of that State, the school committee has the general charge and superintendence of all the public schools in the town. The plaintiff, a minor, was excluded from school for alleged misconduct, and sued to recover damages for such exclusion.

Morton, J.,- speaking for the court, said: “ This general power, (to superintend schools, &e.,) by necessary implication, includes the power to make all reasonable rules aud regulations for the discipline, government and management of the schools, and also the power to exclude a child from school for sufficient cause. And when a scholar is guilty of misconduct, which injuriously affects the discipline and management of the school, we think the law vests in the school committee the power of determining whether the welfare of the school requires his expulsion.” Again, he said: “ He was guilty of acts of misconduct, which, if persisted in, it is clear might seriously interfere with the disciplixxe, and impair the usefulxxess of the school. Whether they had such an effect upon the' welfare of the school as to require his expulsion, was a question for the committee, and upon which their action is conclusive.”

The case of Morrow v. Wood, 35 Wis. 61, involved no principle in question here. It was an action for malicious prosecution, by a teacher, agaixxst the parent of a pupil whom she had flogged for having her ax*rested for axi assault and battexy upoxx the child. The court held that the assault and battexy was unjustifiable, axxd that, therefore, she could not maintain her actioxx. Certain studies are required to be taught ixx the pxxblic schools of that State by statute, bxxt the court held, as a matter of law, that the father “ had a right to make a reasoxxable selection from the prescribed studies for his child to pursue, and this can not possibly conflict with the equal rights of other pupils.” There the father desired his child not to study geography. *295 The plaintiff (the teacher) required the boy to study geography, being fully advised that his father had forbidden the son from doing so. The boy refused to obey her in this respect, and for this was flogged. Murphy v. The Board of Directors, 30 Iowa 430, was a proceeding by mandamus to compel defendant to allow plaintiff' to attend school, and is no authority for the doctrine that a board, of school directors is liable in damages for the expulsion of a pupil for a violation of a rule adopted by the board for the government of the school. While some respectable courts have held otherwise, the weight of authority sustains the conclusion we have reached.

In Dinsman v. Wilkes, 12 Howard 404, Ch. J. Taney, delivering the opinion of the court, said: “ But the fact to be ascertained in this case is whether, in the exercise of that discretion and judgment with which the law clothed him for the time, and which is in the nature of a judicial discretion, he acted from improper feelings, and abused the power confided to him, to the injury of the plaintiff'.”

In Weaver v. Devendorf, 3 Denio 118, plaintiff sued a board of assessors for refusing to make an allowance or deduction in assessing his property, he being a minister, and because his property was assessed at a higher rate than that of others. The court held that the action would not lie, and Beardsly, J., said: “ This case might be disposed of on narrow ground, for there was no evidence to justify the conclusion that the defendants acted maliciously in fixing the value of the property of the plaintiff, or of anyone else; and surely it will not be pretended that they were liable for a mere error of judgment. But I prefer to place the decision on the broad ground that no public officer is responsible, in a civil suit, for a judicial determination, however erroneous it may be, and however malicious the motive which produced it.”

We extract copiously from these cases because they are cited by plaintiff’s counsel as sustaining their view, *296 while we think that they afford them no support whatever.

The petition alleges that the defendants illegally, wrongfully, oppressively, willfully and maliciously, expelled the plaintiff, and then proceeds to state the circumstances under which the expulsion took place, viz : the existence of the rule, and plaintiff’s violation of it. The adoption of the rule is not alleged to have been prompted by malice, and if the plaintiff violated the rule, it matters not what may have been the feelings of the defendants toward him, if they enforced it in the usual and ordinary way, and the contrary is not alleged. While malice is alleged, the facts stated in the petition show that there was no such malice as gave plaintiff a cause of action against defendants for his expulsion.

We are not to be understood as holding that a board could not adopt a rule for the enforcement of which they would be liable for damages. If they should declare that for certain misconduct the teacher should inflict upon the bare back of the pupil thirty-nine lashes, well laid on, or any other rule palpably unreasonable and unauthorized, they probably could not shield themselves against an action for damages by a pupil, under the power given them to adopt reasonable rules for the government of the school. But even this we will not now decide, for “ sufficient unto the day is the evil thereof.”

The judgment is affirmed.

Affirmed.