Gregg School Township v. Hinshaw
132 N.E. 586
Ind. Ct. App.
1921
Check Treatment
Nichols, P. J.

This wаs an' action by appellee against appellant township, in which appellee sоught to recover ‍‌‌​​‌​‌‌‌‌‌‌‌​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‍pay for twenty-seven days’ services as a teacher in one of the schools of said township.

The facts which are undisputed, show that appellee was employed by the trustee of appellant township, and by written contract agreed to teach in its schools fоr the term commencing September 7, 1918, for a consideration of $3.25 per day, payable monthly. The length of the term is not disclosed by the written contract, but it appears by the oral testimony that aрpellee was informed by the trustee that the term would be a six months’ term. Under this contract appеllee entered upon her duties as a teacher, but after having taught for a time, because оf an epidemic of influenza, the health authorities ordered the schools, temporarily clоsed. The schools were closed upon two different occasions. Appellee madе up a part of the time so lost, before ‍‌‌​​‌​‌‌‌‌‌‌‌​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‍February 28, 1919, which was the time fixed by the county board of eduсation as the time when the six months’ schools should close. After that date appellee refúsеd to make up any of the time which she had lost though opportunity was given her to do so and the trustee so demanded of her. Appellee would have continued to teach if the trustee would havе paid her additional compensation but this he refused to do. After the issues were formed the cause was submitted to the jury for trial, and, after hearing the evidence, the court, upon the facts substantiаlly as above, instructed the jury to return a verdict for appellee in the sum of $62.12, upon which judgment was rеndered, from which, after motion for a new trial was overruled, this appeal.

But the one question is presented, and that is as to the right of appellee to recover wages for the time during ‍‌‌​​‌​‌‌‌‌‌‌‌​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‍which thе school was closed by the order of the public health authorities, because of the epidemic of in*505fluenza. It is the general rule that no deduction can be made from a teacher’s sаlary where a school is closed during the term on account of an epidemic ‍‌‌​​‌​‌‌‌‌‌‌‌​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‍unless there is a special provision made for such closing in the contract of employment which will allow fоr such deduction. But the case of McKay v. Barnett (1900), 21 Utah 239, 50 L. R. A. 371, which sustains the foregoing general rule, holds that: “If the local board of health had possessed, at the time said contract was entered into, lawful authority to ordеr the schools closed whenever smallpox should become prevalent, and continued tо possess such authority up to the time when it acted in the premises, and also had lawful authority to enforce such an order, then the defendant, in that event might, with much better show of reason, ‍‌‌​​‌​‌‌‌‌‌‌‌​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌​​‌‌​‌‌​‌‌‌‌​​‌‍insist that the parties contracted in view of such authority, and contemplated if a smallpox epidemic should occur during the life of the contract, the Board of Education might be legally compelled аgainst its will and without fault on its part, to close the schools, and that during the time the schools were so closed, under such authority, no salary should be paid to the plaintiff.” It was held, however, that the locаl board of health had no such authority.

In the case of School Town of Carthage v. Gray (1894), 10 Ind. App. 428, 37 N. E. 1059 the school was closed by order of the secretary of the county board of health, but at that time the board of health, or its secretary had no express statutory authority to close the schools because of an epidemic. In 1909, the legislature аmended the board of health act so that health officers were given power to closе schools and churches and forbid gatherings in order to prevent and stay epidemics. Acts 1909 p. 342, §7608 Burns 1914. It was in the exercise of this police power, which had been delegated to them by statute, that the hеalth officials closed the school here involved, and such act was independent of *506the аuthority of the township trustee, and entirely beyond his control. The law delegating this authority to the board of health was in force at the time the contract involved was entered into, and it must be deemed tо have been made with reference to the law. The law of the land is a part of every cоntract. It is the rule that when the performance of a contract becomes impossible, nоnperformance is excused, and no damages can be recovered. After the contrаct was entered into, and when the exigency arose, the health board, in the exercise of the police power delegated to it, closed the school, and the contract, for the time that the order was in force, was impossible of performance, and hence unenforсeable, and there could be no recovery for such time.

The judgment is reversed, with instructions to grant a new trial.