Opinion
December 31, 1948.
1. Trustees consolidated school district — liability for breach of school contract — absence of malice or wilful wrong.
In the absence of allegation of malice or wilful wrong the trustees of a consolidated school district are not liable in an action to recover a monetary judgment against them.
2. Action — no right of action against party who had no part in wrongful charges.
When there is no allegation that a party defendant had anything to do with the wrong complained of, or if so what, the action is properly dismissed as to him.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, J.
Louis Hengen, for appellant.
No better argument could be prepared to answer the questions that have arisen in this case than the opinion of the Supreme Court as written by Judge Ethridge, Presiding Justice, in the case of Stokes v. Newell, et al. 174 Miss. 629, 165 So. 542.
Numerous other cases could be cited to support the contentions of the appellant in this case, but it is believed that a full discussion and citation of such cases would only cause this record to be unreasonably long and unnecessary because of the fact that all the points raised in the case at bar by the defendants are clearly and positively answered in the opinion of the case of Stokes v. Newell, above cited.
However, attention is called to the case of Stricklin et al v. Copeland, 166 Miss. 244, 146 So. 311, decided by the Supreme Court on February 27, 1933. This was a case wherein Copeland filed a suit against George W. Stricklin, the County Superintendent of Education of Tishomingo County, and others who were Trustees of the Snowdown Consolidated School. Under this case it is noted that the Trustees of a consolidated school as well as the County Superintendent of Education were sued by a teacher who was elected to teach and who held a valid teacher's license.
U.B. Parker, for appellee.
We call the court's attention to the case of Fitch v. Upshaw, 180 Miss. 298, 177 So. 57, which case we submit is absolutely decisive of the case at bar. As to the question of individual liability it is held that there has to be some arbitrary disregard of the right of a person holding a valid contract before there can be any recovery against the individual, and there must first have been a valid binding written contract, signed in duplicate by the superintendent of education and by the teacher in question, then after this existed, and the right of the teacher inured to her as a result thereof, the individual liability could only arise as a result of an arbitrary, fraudulent denial of the right established by reason of the valid contract, — there had to be a contract. See also Stringer v. Roper, 152 Miss. 559, 120 So. 460.
Appellant brought her action against the trustees of the D'Iberville Consolidated School District and the present county superintendent of education of the county to recover a money judgment for damages for not permitting her to teach in the school of the district for the school term of 1947-48. A demurrer to the declaration was sustained and the plaintiff having declined to plead further the action was dismissed.
If we concede for the sake of the argument, without so deciding, that appellant had a valid contract for the stated term, (Hn 1) there is no allegation in the declaration that the defendants in refusing to allow it to be carried out were guilty of any tortious conduct, such as that they were actuated by malice or ill will, or were guilty of any wilful wrong, but so far as the allegations of the declaration are concerned the defendants and each of them may have acted upon what would appear to men of good purpose and of average prudence as good and sufficient grounds, in which case it is settled that trustees of a consolidated school are not suable for the recovery of a monetary judgment. Stringer v. Roper, 152 Miss. 559, 120 So. 460.
And as to the superintendent, the occupant of that office at the time the contract was breached, if there was a breach, was not sued, and (Hn 2) it is not shown by sufficient averment that his successor, who has been made a defendant, had actually anything to do with the matter complained of, and if so what.
Affirmed.