Headnote by JARMAN, C.

Plaintiff violated the terms of the contract and made her subject to removal.

School Dist. v. Gautier, 13 Okla. 194, 73 Pac. 954.

A teacher may be removed for violation of the rules and regulations of the school board.

35 Cyc. 1089.

The board cannot be arbitrary in discharging a teacher, but must do so upon facts, and the question whether the plaintiff complied with the contract is a question that must be submitted to the jury.

Urie v. Board of Education, 86 Okla. 265, 208 Pac. 210.

Messrs. Simons, McKnight, & Simons for defendant in error.

Jarman, C., filed the following opinion:

On August 20, 1921, school district No. 25 of Blaine county, hereinafter referred to as defendant, made and entered into a contract in writing with Velma Bear, hereinafter referred to as plaintiff, to teach school for a term of seven months, beginning September 12, 1921, at a salary of $100 per month;

and, in addition to performing certain duties, such as making reports and keeping in good condition the schoolhouse, grounds, furniture, etc., the plaintiff agreed to observe the rules and regulations prescribed by the defendant. After teaching for a period of three months, the plaintiff was discharged by the defendant, acting in conjunction with the county superintendent of education, for failing and refusing to make fires and do the other janitor work. The plaintiff did this janitor work until the weather became severe, when she notified the defendant that she could no longer do this work, as it was too burdensome, and asked that someone be provided to do the heavy janitor work, which the defendant refused to do.

The plaintiff filed this action to recover the sum of $400, balance alleged to be due her under her contract, resulting in a verdict for the plaintiff, on which judgment was rendered, and the defendant brings

error.

The defense was that the plaintiff had failed to give satisfaction, and

was incompetent and negligent, and had failed and refused to build the fires, sweep the schoolhouse, and perform the other duties incident to the janitor work which the plaintiff was required to do by virtue of certain rules and regulations adopted by the defendant.

Under § 10367, Comp. Stat. 1921, incompetency and negligence in the performance of duty are grounds for dismissing the plaintiff. These questions were submitted to the jury and determined adversely to the defendant.

The only question involved here is whether the trial court erred in giving instructions 5a and 5b, wherein the court instructed the jury that, under the terms of the written contract sued upon, the plaintiff was not required to do the substantial janitor work, such as making the fires, and, if the evidence disclosed that the only ground upon which the defendant discharged the plaintiff was her refusal to perform such janitor work, the verdict should be for the plaintiff. In other words, the question here is whether the plaintiff could be required to make the fires, sweep the schoolhouse, bring the water, and do the other chores incident to the janitor work, in the absence of a stipulation to that effect in the contract. The defendant contends that this duty is imposed upon the plaintiff by the rules and regulations adopted by the defendant, which the plaintiff agreed to observe by the terms of her contract; and it is further insisted by the defendant that the evidence shows that it was the custom for teachers in that school district to perform the janitor work in connection with their teaching.

In this connection, counsel for defendant argue that a generation or more ago the teacher always attend

ed to this part of the work, and would look after it personally or have the big boys bring in the wood, build the fires, and, if necessary, sweep out the buildings. By going back to still earlier days we can readily recall the old split logs for benches and the big roaring wood fires and the blue back speller, and no thought of janitor service; but all of this offers no reason why, when competent and qualified parties are reducing their contract to writing, they should not be required to incorporate requirements for janitor service in the contract if the teacher is expected Schools duty to perform such du- of teacherties. The defend- Janitor service. ant had no more right to require the plaintiff to make the fires and do the other menial chores, by providing for the same in its rules and regulations, aside from the contract of employment, than it had to require the plaintiff to scrub the walls or paint the building. The defendant employed the plaintiff to teach the school, and this, the jury found by its verdict, had been done by the plaintiff in a proper manner. It was the duty of the defendant to not only furnish a schoolhouse and equipment, but also to make it possible for the school to be taught by making the schoolhouse sufficiently comfortable that the plaintiff could discharge the duties she had contracted to perform. The plaintiff has cited no authority in support of its contention and indeed we believe there is none.

The issues involved in this controversy were properly submitted to the jury, and the judgment of the trial court is affirmed.

Petition for rehearing denied February 17, 1925.

Cases like Hall-Moody Institute v. Copass (1902) 108 Tenn. 582, 69 S. W. 327, involving the propriety of a

teacher's conduct as distinguished from the duty to render services other than those pertaining to instruc

tion, are beyond the scope of the annotation.

In the reported case (SCHOOL DIST. v. BEAR, ante, 1413) it was held that, in the absence of a stipulation to the contrary in a school-teacher's contract, she was not required to perform janitor work, such as carrying fuel, making fires, and preparing the school building for occupancy during school hours.

In Carver v. School Dist. (1897) 113 Mich. 524, 71 N. W. 859, the court held that it was not error for the district school board to show that a teacher employed by them failed to build fires and to keep the schoolhouse comfortable, where the parties themselves placed a construction on the contract between them which imposed this duty upon the plaintiff, and he assumed that duty.

In Eastman v. Rapids (1866) 21 Iowa, 590, where a teacher contracted to "faithfully and impartially govern and instruct the children," a failure on her part to manage the students or subject them to her control, as a result of which "the school was a failure," and the students "did not learn," was a sufficient justification for her discharge, even though she was faithful in her efforts to manage the school.

But, in Hall-Moody Institute v. Ccpass (Tenn.) supra, the court held that a young lady teacher could not be expected to keep entire good order in a schoolroom of students, many of whom were young men or large boys of an unruly and boisterous nature, and, under the circumstances, she would be responsible for inattention and neglect only, and could not be held to keep order at all hazards.

It is of great importance that the association of teacher and pupil should tend to inculcate in the latter principles of justice and patriotism and respect for law. McDowell v. Board of Education (1918) 104 Misc. 564, 172 N. Y. Supp. 590. And the court held in the instant case that a Quakeress, who was opposed to all wars, and did not want to help this country in its war against Germany, and would not urge her pupils to sup

port the war or to contribute to the Red Cross, and who believed that a teacher was under no obligation to train her students to support the government of the United States in its measures for carrying on the war, might very well be regarded as incompetent and inefficient within the meaning of a school law providing that a teacher shall hold her position "during good behavior and efficient and competent service, and shall not be removable except for cause after a hearing by the affirmative vote of a majority of the board."

Under a statute authorizing school boards to employ teachers competent to give physical-training instruction, the physical training contemplated by the statute is a course of training for all the pupils of a school, and does not comprehend the coaching of football teams; thus, where a teacher was engaged as a high school and athletic instructor, it was not a sufficient ground for his discharge that he was unable to coach a high school football team. Nor, in the absence of any statutory authority giving school districts the authority to spend public money for the coaching of high school football teams, making the qualifications of a teacher depend upon his ability as a football coach, would the discharge on such grounds be justified. Rockwell v. School Dist. (1923) 109 Or. 480, 220 Pac. 142.

In Bechtel v. Combs Broad Street Conservatory of Music (1919) 71 Pa. Super. Ct. 426, it was held that one who entered the faculty of a conservatory of music, contracting to render her services for "her board, room, and washing and one lesson a week" from another member of the faculty, could not be discharged for her refusal to render a musical composition at the commencement exercises of the school, in the absence of a provision in the contract requiring her to take part in the exercises on that occasion; and the fact that she received instruction in the school did not constitute her a student, as the instruction she received was part of her compensation; thus she could not be discharged on the ground that she was a student and

guilty of insubordination to the instructor in refusing to play at the commencement exercises.

In King v. Ford (1816) 1 Starkie (Eng.) 421, Lord Ellenborough was of the opinion that if a master of a school, knowing that fireworks would be used, were to be negligent in not preventing the use of them, he would be responsible for the consequences.

Darling, J. in Shepherd v. Essex County Council (1913) 29 Times L. R. (Eng.) 303-K. B. Div., laid down the rule that the standard required of a schoolmaster in relation to his duty to his pupils was that of a careful father.

Duty to keep school statistics.

In Owen School Twp. v. Hay (1886) 107 Ind. 351, 8 N. E. 220, where a statute provided that school-teachers should, at the expiration of the school term, make a report to the school trustees of the school record, and that until such report was made the trustees should not pay more than 75 per cent of the teacher's wages for services rendered, a teacher who went beyond the terms of the statute in her contract, by agreeing to make the report required, and further agreed that she should be paid the agreed wages upon the receipt of her report, could not recover any portion of the agreed wages until she should make out the report unless the trustee waived the making of same.

And, under a statute requiring teachers to enter statistics of the school into registers, and make due return to the board of county school commissioners at the end of each term, the principal of district schools is not exempt from making such reports, as he is a teacher, the law not contemplating any such officer as "principal" with duties other than those of teacher. Alleghany County v. Adams (1875) 43 Md. 349.

And a failure on the part of a school-teacher to properly fill up and complete the register of the school kept by him, in accordance with the statute, forfeited all right on his part to receive payment for his services, and the school committee of the town had no right to dispense with or waive

the keeping of such a register, and such a waiver could not shield the teacher from the forfeiture incurred by the failure to comply with the requirements of the statute. Jewell v. Abington (1861) 2 Allen (Mass.) 592.

But, in Crosby v. School Dist. (1863) 35 Vt. 623, the court held that, although by a statute a school-teacher was required to keep a register of school statistics, a failure to give in such a register all the information required by law would not work a forfeiture of her wages.

In Jay v. School Dist. (1900) 24 Mont. 219, 61 Pac. 250, the court stated that it is the duty of teachers by statutory requirement to make annual reports, or at any rate to report at the end of the term for which they are employed.

And where a teacher is required by statute to make a report to the superintending school committee, of the attendance, branches of learning taught, and the progress made at the school, he is not entitled to compensation even though he makes a report, if it is unsigned and otherwise defective. School Dist. v. Tuttle (1853) 26 N. H. 470.

But, in Carver v. School Dist. (1897) 113 Mich. 524, 71 N. W. 859, where a school-teacher agreed, in his contract with the district school board, to keep a correct list of the pupils, and of their age and attendance, the school board was not authorized to demand of him that he keep a grade register, regardless of a regulation of the superintendent of public instruction requiring a grade register, as neither the superintendent of public instruction nor the school examiners could enlarge or modify the contract between the school board and the teacher; and, if the plaintiff kept such a list as was stipulated for in the contract, the school board was not authorized to demand anything more.

Although by statute, school-teachers were required to make monthly reports before receiving pay for their services, a teacher whose school had been closed on account of lack of funds, before the expiration of the