
    Montgomery v. Board of Education of Liberty Township, Union County.
    
      Schools — 'Contract to convey pupils — School suspended during epidemic — No deduction in compensation, when.
    
    One who entered into a contract, entire in its nature, with a board of education, providing that he should convey pupils to and from school during a school year, of eight and one-half months, at a stipulated compensation payable monthly, is entitled to such compensation during a period of suspension of the schools by the board of education, though it be upon the direction of the board of health as a precautionary health measure, there being no provision in the contract relative to such contingency and it appearing that the suspension was temporary and the person so employed was required to and did continue ready and willing at all times to perform his duties under the contract, which he in fact did upon the resumption of school after such period of suspension.
    (No. 16673
    — Decided March 29, 1921.)
    Certified by the Court of Appeals of Union county.
    The plaintiff in error, Homer Montgomery, brought action in the court of common pleas of Union cotmty against the Board of Education of Liberty Township in said county to recover a sum claimed to be due him from the board of education by virtue of a contract entered into whereby he agreed to convey pupils from a certain section of the school district to and from school during the school term of eight and one-half months, at the rate of $3.00 per day, payable monthly. Evidence was introduced supporting the claim of plaintiff below, which discloses that during the period for which the plaintiff seeks to recover compensation the schools were closed by reason of an epidemic of influenza, pursuant to the order of the local board of health, as a precautionary health measure, the order being that the schools be closed until further notice. During the period in question the plaintiff was required to and did keep himself in readiness to resume the transportation of pupils upon notice, for which purpose he kept and maintained a team of horses, and was ready and willing at all times to do and perform all things on his part to be done and performed under the terms and provisions of his contract.
    Judgment was rendered in his favor in the court of common pleas, but was reversed by the court of appeals on the ground that the performance of the contract for the period of time in question was made impossible by order of the health authorities. That court, upon finding that its judgment was in conflict with that of the court of appeals of Franklin county in the case of Cashdollar v. Board of Education, 12 Ohio App., 298, certified the record of the case to this court for review and final determination.
    
      
      Mr. C. A. Hoopes, for plaintiff in error.
    
      Mr. Milo L. Myers and Mr. John H. Willis, for defendant in error.
   Matthias, J.

The contract entered into by and between Montgomery and the board of education, as found by the trial court from the evidence,, and which there was ample evidence to support, was an entire contract, wherein it was agreed that Montgomery should transport pupils to and from school during the school term of eight and one-half months at the rate of $3.00 per day, payable monthly. There was no stipulation in the contract whereby either of the parties should be relieved from the obligations thereof by reason of any conditions which might thereafter arise. It is to be observed that the direction of the local health officer, pursuant to which the sessions of the school were suspended, was that the school be closed until further notice. It waSjNhe-r-efore,' required of the plaintiff, in order to perform his contract, to constantly and continuously maintain a team and equipment, and hold himself in readiness at any and all times upon notice to transport the pupils of the district to and from school. He could not make any engagements whatever that would prevent the faithful and prompt discharge of his duties under the terms and conditions of his contract. Such was his obligation during the entire period of eight and one-half months which the contract covered.

The only question of law presented by the record in this case is whether under the terms of such contract, and the circumstances and conditions to • which reference has been made, the plaintiff in error is entitled to compensation for that portion of the period covered by the terms of such contract during which the schools were closed by the order of the local health authorities as a precautionary health measure on account of an epidemic of influenza.

The view that the plaintiff is entitled to such compensation and that recovery thereof in this case is justified is amply supported both by reason and authority. The right to recover under similar circumstances frequently has been sustained in behalf of teachers in the public schools, and no reason is perceived why the same rule should not apply to one occupying such relation to the public schools as does the plaintiff in this case.

It is quite generally held that no deduction can be made from the salary of a teacher in the public schools for the time the school is closed by reason of contagious disease, where the teacher remains ready to continue his duties under his contract of employment, unless there is a stipulation in the contract of employment covering such possible occurrence. (35 Cyc., 1099.) Numerous decisions may be cited in support of this proposition, from which we have selected the following because of the sound reasoning supporting the conclusion announced, which apply directly to the case under consideration: Dewey v. Union School Dist. of Alpena, 43 Mich., 480; McKay v. Barnett, Treas., 21 Utah, 239; Randolph v. Sanders, 22 Tex. Civ. App., 331; Libby v. Inhabitants of Douglas, 175 Mass., 128; Smith v. School District, 89 Kans., 225; Board of Education of Hugo v. Couch, 63 Okla., 65, and School Town of Carthage v. Gray, 10 Ind. App., 428. In each of these cases the suspension of school was temporary and the person whose compensation was in issue was required to and did remain in readiness to resume active and actual discharge of his prescribed duties.

In this case the plaintiff in error necessarily was subject to the daily direction and order of the board of education and could not make any engagement or undertake any service which' would interfere with his constant readiness to resume the active discharge of the duties imposed. During all such period, therefore, upon each school day, his time and service and the service of his team, which he must necessarily provide and constantly maintain, continued subject to the order of the board of education; and his employment, in so far at least as it prevented his engagement in other occupation or undertaking inconsistent with his duties under his contract, was continuous throughout all of the period in question. He did in fact, upon the resumption of school after such period of suspension, convey the pupils of the district to and from school during the remainder of the school year.

The contingency which here occurred was one which might well have been foreseen and provided against in the contract, but was not. The law will not insert by construction for the benefit of one of the parties an exception or condition which the parties either by design or neglect have omitted from their own contract.

The judgment of the court of appeals is reversed and that of the common pleas affirmed.

Judgment reversed.

Marshall, C. J., Johnson, Hough, Wanamaker, Robinson and Jones, JJ., concur.  