Taggart v. School District No. 1 , 97 Or. 95 ( 1920 )

BURNETT, J.

This is an action to recover the salary which the plaintiff claims to be due her from the defendant for the months of September, October and November, 1918, at the rate of $160 per month. As in its companion case of mandamus, 96 Or. 422 (188 Pac. 908), the plaintiff states that:

“For three successive annual terms next preceding the term commencing in September, 1918, said plaintiff was employed continuously in the schools of said district as a regularly appointed teacher and instructor, under the authority of the board of directors of said district, in the science department of the Lincoln High School. ’ ’

This allegation was denied.

The answer admits certain services rendered by the plaintiff as a substitute for a regularly employed teacher who was prevented by illness from attending to her duties, and admits that during the three months mentioned the plaintiff earned $205, which the defendant tendered and brings into court for the benefit of the plaintiff.

1. It is disclosed in the findings of fact upon which the judgment in favor of the plaintiff was based that, ‘ ‘ She never signed a contract with the board, but was appointed, designated and assigned to said department by Superintendent Alderman in September, 1915, during the illness of one Frances Heath, and after whose death plaintiff continued to teach in said department until her discharge by the board.” The findings of fact do not justify the judgment. The plaintiff failed to prove her allegation of employment as teacher when measured by the plain requirement of the statute. The principles announced in the mandamus case are decisive of this and lead to a reversal of the judgment. The cause is therefore remanded to the Circuit Court, with directions to enter a judgment for the plaintiff in the admitted sum of $205.

Reversed and Remanded "With Directions.

McBride, C. J., and Johns, J., were not present at the hearing of this case.

Denied July 20, 1920.

On petition for rehearing.

Petition Denied. Mr. John C. Jenkins and Mr. E. T. Taggart for the petition. Mr. Qus C. Moser and Mr. Roy K. Terry, contra.