Whittington v. Barbour County Board of Education Court Opinion

    - oi tte above we hold that i1
: ic; the jury as to whethcr

-': plaintiff was lawful and
. -.i: general affirmative
i5 plaintiff was Properly

be plaintifi testified that
a :ro years had passed since

i;-- b the defendant that she

= brcught to trial on the
l sle s'as arrcsted. The plai

o tcs-jfied, we do not think ;;;r.' .-. _ _^^^^-i-a +ho irrrrr- are taken as true on demurrer'

trtIIxINGToN v' BARBOURffi'i'^$"#rgARD oF EDUoATIoN alo' 83

:i*'r ;1,;T il:"il; I i"i: i:i li ,i;;fi:l:*i :tl -!,';;lr:l: 
#':T;i:;

or tlre record,*:'-,'l"l^'jiii*tl:; il;:' 
coJ' rs{o' rit' 52' ss 3s2' 3s3' 3s7'

I o.f Ti,it" ;", irrri ti. i'a not in {act 360'

i xl,iil,; *'. :1T: ;:ffi :',:. . & fi:"i::ff:,;'i:l'":J ",:';:',311,f],",,

* ll'""* :."J" ln iLt'"'g tr i ar c ou rr s y- j:; * X'l:li ":;:*::'i;,':;, ;:*'l'THsin;' ;;i;;tr'' requested *u,,n.. in.which "l_.:iLYT:nt 
contract

numbered 3. Assumrng that the v''ith a teacher on continuing service status

should otherwise have f"t" ri"t'1 Ly f":l;t'1"^t; 
Code l9{0' Tit' 52' $$

[,jl#;;;;;;t"'to be itated 3s2' 35s' 3s7' 360'

i,;ll *,* n:.:,,:.'::. i[',#,ilI . "iXil[::.= l.: p e, i ti on ro r m andamus

ff:'ll[, :;ll T'#llii'n" 
j'o':' 

*ffi 
:T *i,'l'il ::i::1[fr :lil?, *

oed' lst, and before teacher had achiev"'d con-

DNER, c. J., and FoSTER and llH'f :'#'.T'1H:iil1"'i ::';j#i!!
LY, JJ', concur' and after 'Irlay lst, after teacher had

' achieved service status' canceled her con-

tr.ct o'er her objections to irregularities'

{ <TRIES

'-.D Ala.279; Jordan v.

: 6rtrr is shown in
:-:l court's action in

-'=:: to introduce in evideq3
i -ie urayor's court which
d:rge against the Plaintiff

r:ssi of by the payment of a
:::i or brother-in-law. Per

kce would not have been adtJ
r= the payment ty the father

=-lar s'as made without the
ria-r€nt of the plaintiff, if the
a- injected into the case by
;-.r=I evidence which, if not
r-ied to show that no dispositi
: -.Ce of the charge against ha.

--g the evidence relative to
c: tie fine by the father or

r-- :ne trial court instructed the j
: ga)-Eent was not to be constr

=-- that the plaintiff had
-i: charge.

S:: do we tJrink that r
r-rra in permitting the def
i: L\e physical condition of
:i 5e mayor's court which
;,xj,1p of the charge against

- This record was shown to

= eai crumpled and we think it
e=-salc error on the Part of

=: to permit ttre defendant to

r the case was disPosed of as.
'- 
-.oC., the plaintiff came to the

pc tle record entrY as to ttre di
,i the charge against her and

: oadition of the judgment
s: tD' the plaintiff. Moreover,
e5 that this could have beea

tsr thc jury as indicating Plai
cpess of guilt. On the

io"A't action was ineffective for' failure

i"1"-pry with reguirements of teachers'

tenure law as to procedure and notice' not-

o,itt.t"r,aing teacher's request for charges

and for .ontino"n." until her service stat-

us was established and her apPearance--at

rrittrcront 1 :1L:9Y[::'n" *t"ffi. 
code 1e40' riL's2' SS 3s2' 3s3'

BoARD OF EDUGATIoN' ee' ' 
v'-'

4 Dlv.496. (-) +

' Suprene Court of Alabama' Appeal f rom Circuit . Court, Barbour

June 10, J948' . County; J. S' Williams, Judge'

d school dlstrlcts o=l4l(5) Petition of Mary Neil Whittin$on for

thc teachers' tenure law' 1 t"natrnos to review the action of the Bar-
ools and school dlstrlcts @l4l(5)

;;;ri-;"r. cancct the contract gf ;;r County Board of E{ucation in ter-

"l,,i "i "'tt^cher 
who has not "b- -i""tl"g her employment 

las a teacher'

ffiffiii; '*';tt status merely t.,y rt"- a"" order oi dt"tt" sustaining a de-

iirt"r'r,.r it;'.t st " witt not be titT ;;;;"t to the pctition, petitioner appeals'

t ior the next etrsuing year' Code 
Reversed and remancled.

Tit' 52' S 360' E. w. Norton, of clayton, and Richard

and school dlatrtcte @14l(5) T. Rives, of Montgomery, for appellant'

Under the teachers' tenure law pro- A. A. Carmichael, Atty. Gen., and Silas

fo that any public school teacher' C. Garrett, III, Asst. Atty' GeD', for ap-

Lr in continuing service status-or not' 
,.11...

':br deemed re-employed for the suc-

[j:*iJ""i: TJH"[: i:II;:; YY',i:::i)',]::'::
.1"ff;1#'[t;n':::'#:1 .r]is 19lear 

is rrom an order or decree

nt, retter or board "t'illlfi'l'' :: -*:, !:;':':.:::'::,","'il*:,-t'::"?;
crideoce tended to show tlat

Ii';'::',1r;".J:il:r:i":"ir'#l,d ::'illllt, a demurrer to the petition or

of board to consider "]'l#'it"' 
latty Ntit whittin4on for the writ of



84 Ara. 3O SOUTEERN REPORTER, 2d SERTES

Iii
t

I
i

"Barbour County Schools
"OmC. ,of the Superintendent

"Clayton, Alabama
"April 29, 1942.

"Mrs. Mary Neil Whittington,
"Clayton, Alabama.

"Dear Mrs. Whittington:
"At a meeting of the County Board of

Education this morning, I was instructed
to notify you that the Board of Education
will meet May 30, 1942, in the office of the
County. Superintendent of &lucation . in
Clayton, and on the date and at the place
v;ill consider at the hour of 10:00 a. U.,
the cancellation of your contract of .m-
ployment.

"This notice i.s given in compliance with
the provisions of the teacher tenure law.

"Very truly yours,
"P. A. McDaniel
"County Superintendent of &lucation
and Executive Secretary of the Bar-
bour County Board of Education.,,

On l\{ay 5, 1947, Mrs. Whittington re-
quested, in writing, that she be furnished
lyith a written statement of the reasons for
the consideration of the cancellation of her
employment contract. On May 6, lg4Z,
her request was complied with, and the fol-
lowing reasons assigned:

"1. Diffcutty with discipline.

mandamus seeking a review of the actionof the Board of &lucation of Barbour
County in terminating her employment, or
cancellation of her employment contract, as
a teacher in the Barbour County school
system.

In substance the petition for mandamus
shorvs the following: The appellant is a
teacher, as that term is employed in the
Teacher Tenure Law of this State, and
was employed in the Barbour County school
system for the school years lgl4_lg4i,
1945-1946 and t91t6l94Z. At the time the
Board of Education took the 6rst step
which gave rise to this proceeding (April
8, 1947), she was then in the cJuise ,rf
completing her third school year as a teach-
er in the Barbour County school system,
and_ which school year ended on \lay 22,
1947. On April 29,1947,the Board of Edu-
cation gave Il[rs. Whittington the follow-
ing notice:

"2. Ineffective work done by pupils,
probably due to lack of discipline.

"3. Dissatisfaction expressed by parents
as a result of points being taken from
grades as punishment.

. "4. Inability to fit into the system per-
haps as a result of local sentiment.

"5. Failure to cooperate with and a re-
sentment attitude toward the administra_
tion."

On May ti, lg4|, Mrs. Whittington re-
quested in writing a hearing of the charges
against her, and, on LIay lO, lg47, she ias
notiEed that said hearing would be held on
May 19, 1947. On May lg, lgl7, by agree_
ment of the parties, the hearing ,r", .on-
tinued until May 23, 1942. The hearing
was conducted on May 23, 1947, and oi
May 30, 1947, the Board of Education by
unanimous vote of the members thereoi,
evidenced by the minute proceedings oi
the board, ordered the cancellation oiMrs.
Whittington's employment contract, and
she was so notified on that data

The petition for writ of mandamus fur-
ther alleges that, on May 23, 1942, bef.ore
the taking of testimony, Mrs. Whittington
objected to the board's hearing o, 

"onrii.._ing the charges against her, or to further
proceeding in the matter on the ground
that section 357, Title 52, Cod,e, h.a ,rot
been complied with. The objection was
overruled, and the hearing proceeded with
the results above indicated.

Section 352, Title 52, Code, reads:

_ 
"1r, teac\er in the public schools, who

shall meet thC following requirements, shall
attain continuing service status: (a) Such
tedcher shall have served under contract
as a teacher in the same count1r or city
school system for three consecutive year-s
and shall thereafter be re-employed in such
county or city school system. (b) Such
continuing service status can be conferred
only by the re-employment of such teacher
for the school year beginning in the fall of
1940, or for some subsequent school year.,,

Section 353, Title 52, Code, reads:
"The contract of employment of any

teacher who shall attain continuing servicc
status shall remain in full force and efiect
unless superseded by a new contract sigued
by both parties, or cancelled 

", grorld.d

WEfffINGllrON r

in section 357 or sectior
provided that the leg'ista
sence of legislation, thr
of education may provi
ment of teachers at ccrt,

Section 357, Title 52,

"An employment contr
cn continuing service sl
celled only in the follon
less than thirty, nor mor
before the consideratioa
board of education, of t
any such contract, such
notified in writing of th,
when, and place where :
is to take ptace; and suc
furnished with a written
reasons for such conside
days aftcr any rvritten
statement, provided, hov
the unanimous opinion o:
ent and of the memberr
ing board, the cause of cr
such contract justifies, a
suspended immedrately; 

1

that such suspension in nr
to deprive the teacher of
ing as hereinafter provid
shall, upon written reques
within fifteen days after t
teacher of notice of datr
of a proposed considerati
contract, be given a hearir
ploying board of educatic
shall be held not less thar
more than ten days, afte
frled and such teacher shall
than 6ve days notice of tl
cf such hearing. Such tea,
tnS, shall have a right to
of the reasons for the pr
tion of such contract, and I

to appear with or without r

have a right to be heard a
testimony of witnesses an
bearing upon the reasons
cancellation of such contra
with a teacher shall be ca
time set for consideration
tion of such contract; n
hearing is held, if such i
quested by said teacher; r
Ploying board of educatior
of a majority of its membr
the minute proceedings ol



0R, 2d sEnrEs fsnTINcToN v. BARBou"fPgol"rE.B"oARD oF EDUCATIoN AIa- 85

L.ion 357 or section 358 of this title; dered the cancellation of such contract aft-
Ii.a tt ^t 

the lcgislature, or in the ab er full compliance with the provisions of

oi tegislation, the employing board this section."

of cducation, of the cancellation of

Section 360, Title 52, Code, provides:

"Any teacher in the public schools, wheth-
er in continuing service status or not, shall
be deemed re-cmployed for the succeeding
school year .at the same salary, unless the
employing board of education shall cause
notice in n'riting to be given said teacher
on or before the last day of the term of the
school in which the teacher is employed;
provided, however, that in no case shall
such notice be given the teacher later than
the first day of May of the termination of
such employment, and such teacher shall
be presumed to have accepted such employ-
ment unless he or she shall notify the em-
ploying board of education in writing to
the contrary on or before the 6rst day of
June. The employing board of education
shall not cancel tEEToiiiacict-EiyEa-dher
in--conifi-u-i n g -sEiiice -s 

ta tugr_lqjarse--qo-
ticrof-non'-empioym34g-19 be given to any *
t€5Cfi ef -wE-e-ifi-e r i n c o n t i n u i n g-5qlf igs s t aJ -
uS-oi-not exceE-6y-a vote of maiority of
i en-
tiGfiGi-J board *"d.*prlo, to-o, 

"i1fr"time of anv such action."

[1,2) IUrs. Whittington had not attained
continuing service status on April 29, 1917.
On that date the school board could have
cancelled her contract of employment hy
the simple expedient of notifying her that
she would not be re-employed for the next
ensuing year. Section 360, supra. It is
clear enough that the letter from the Board
of Education to Mrs. Whittington, dated
April 29, 1947, did not prevent her auto-
rtatic re-employment for the school year
1947-1918, and it is not here insisted that
it did. On Nlay 22, 1947, the date on rvhich
the school year ended, I\{.rs. Whittingto:t,
by virtue of the provisions of secrion 352,
supra, having served under contract as a

teacher in the same county or city school
system for three corlsecutive years, attained
continuing service status. Thereafter, the
only manner in which her emplol,ment con-
tract may be cancelled is that provided by
section 357, supra. We think it requires
no argument to demonstrate that the re-
quirements of section 357, supra, werc trot
EeL

luch contract, such teacher shall be

in writing of the exact date, time

and place where such consideration

Ineffective work done by
rbly due to lack of discipline.

Dissatisfaction expressed by

of the parties, the hearing was cai
d until May 23, 1947.. 

.Th_e 
hear;13

conducted on May 23, 1947, and ifi, 1947, the Board of Education i

result of points being taken
es as punishment.

Inability to fit into the system
as a result of local sentiment.

Failure to cooperate with and r
nent attitude toward the admini
)

,
r May 9, 1947, Mrs. Whittinglel ;,i
:ed in writing a hearing of the cha
tst her, and, on May 10, 1947, she
ed that said hearing would be held
19,1947. On May 19,1947,by

imous vote of the members t
nced by the minute proceedings

ras so notified on thattate-
e petition for writ of mandamus
alleges that, on May 23, 1947,
aking of testimony, Mrs. Whittingtq
ted to the board's hearing or consider.
he charges against her, or to furtbe
reding in the matter on the
section 357, Title 52, Code, had
complied with. The objection

uled, and the hearing proceeded

esults above indicated.

:tion 352, Title 52, Code, reads:

ny teacher in the public schools,
meet the following requirements,
l continuing service status: (a)
er shall have served under
teacher in the same county or
,l system for three consecutive
hall thereafter be re-employed in
y or city school system. (b)
ruing service status can be con
by the re-enrployment of such
re school year beginning in the fall
or for some subsequent school ycat'

rtion 353, Title 52, Code, reads: .'
te contract of employment of
er who shall attain continuing
; shall remain in full force and
i superseded by a new contract

lilprive the teacher of the right of hear-

I u hereina.fter provided. Any teachcr

&tl, upon written request for hearing, file

rirhin fifteen days after the receipt by said

Ichcr of notice of date, time and place

$r proposed consideration for cancelling
Elract, be given a hearing before the em-

)oying board of education; such hearing

ill U. held not less than seven days, nor

Jir than ten days, after such request is

Iu.rtion may provide for the retire-

i-of teachers at certain ages'"

i*oron 357, Tttle 52, Code, Provides:

i,1o cmployment .contract 
with a leacher

Jitinring service status may be can-

i onty in the following rnanner: Not

tban thirty, nor more than forty days

ra the consideration by the employing

' I lo t t. place; and such teacher shall be

i.i'r'a with 1 l-'li::l :li::"-'t,"it:l-:'-J^t for such coasideration within 6ve

fr aft.. any. written request. for.such

oard, ordered the cancellation of [r1
tington's employment contract, rqi

A-.n,, Provided, however, that if, in

L unanimout opinion of the superintend-
''I ana of the members of the emPloY-

L Uo"ra, the caus.e- of cancellation of any
#4 conttr.t justifies, a teacher may be*F COntraCt _lustlnes, a teacner may De

n[r.aa.a immedrately; provided, further,

lil oct, suspension in no case shall serve

end such teacher shall be given not less

6ve days notice of the timc and place

nch hearing. Such teacher, at the hear-
rhall have a right to a full statement

the reasons for thc proposed cancella-
ol such contract, and shall have a right

rgpcar rvith or without counsel, and shall
irc a right to be heard and to present the
hony of witnesses and other evidence

upon the reasons for the proposed
.ion of such contract. No contract

t teacher shall be cancelled until the
rct for consideration of the cancella-iof such contract; nor until after :r

is held, if such a hcaring is re-
by said teacher; nor until the em-
board of education has bv a vote

of its mcmbers, evidenced byrth parties, or cancelled as
e proceedings of the board, or-



il
lr

86 al8.

lhe argument is further made that the

actions of NIrs. Whittington in requesting,
in writing, the charges against her, in mak-

ing a written request for a hearing before
thc board, and her appearance before the
board on May 19, 1947, and agreeing that
the hearing might be continued to May 8,
1947, constitute a waiver oI any defects in
the notice artd procedure.

il. tal Section 357, supra, provides the

onl,y manner in which an employment con-

tract rvith a teacher on continuing service
status may be cancelled. Its provisions are
mandatory and jurisdictional. IVIrs. Mrit-
tington, after attaining continuing service

status, but before a hearing of the charges

against her, objected to the hearing and in-
sisted, in effect, that the board had not com-
plied rvith section 357, supra, and rvas, there-
fore, without jurisdiction to proceed.

[4,5] The averments of the Petition
for mandamus, taken as true on demurrer,
plainly show that the requirements of the

Teacher Tenure Law rvere not complicd

r*'ith, and Mrs. Whittington's contract of
employment was not cancelled.

Reversed and remanded.

GARDNER, C. J., and BROWN and

SINIPSON, JJ., concur.

COX v. BENNETTi
6 DIY: 695.

Supreme Court of Alabarna-

June 17, 1948.

t. Trlal @120(2)
There should be some evidence of

violation of statute or ordinance before it
becomes relevant on question of actionable

negligence and hence subject to comment

to jury by counsel.

2. Trlal e=cl l5(4)
'In action for death of pedestrian struck

by truck being backed onto sidewalk from
defendant's filling station, evidence war-

8O SOUTEERN REPORTER,2d SERIES

ranted inference bj' jury that truck qras

not stopped within 20 f.eet of sidewalk
before entering thereon, as required by

city ordinance, so as to authorize reading
of ordinance to jury by plaintiff's counsel

in opening argument.

3. Trlal @108V2
Insurer's absolute liability on public

liability policy is not test of right to
interrogate prospective jurors as to lvhether
they have retatives connectcd rvith insurer,
but possibility of larvsrrit, which insurer
may be called on to defend, gives such right.
Code 1940, Tit. 30, S 52.

4. Jury €l3l(4)
The statutory right to examine jurors

as to their qualifications, interest, or bias
affccting trial of case and any matter
*'hich might tend to affect verdict is broad
right, which must be sustained, if not exer-
cised in bad faith or merely designed to
prejudice case. Code 1940, Tit. 30, $ 52.

S. Trlal €=l0BZz
In action against truck owner and

filling station opeiator for death of pedes-

trian struck by truck being backed onto
sidewalk from filling station by such

operator's employee, ruliugs,'permitting
plaintiff's counsel to interrogate Prospec-
tive jurors as to whether they had relatives
connected with truck owner's public liabil-
ity insurer, and refusal of mistrial after
such inquiry, were not erroneous, though
action had been dismissed as to truck own-
er, where statute of limitations had not run
against such owner. Code 1940, TiL 30,

$ s2.

0. Conlnuance €=26(4)
In action for death of Pedestrian

struck by truck being backed from defend-

ant's filling station by defendant's employee,

refusal of ccntinuance because of absence

of such employee as witness for defendant
was not error.

+

Appeal from Circuit Court, Jefferson
County; Leigh M. Clark, Judge.

Action under the homicide act by &lith
Bennett, as administratrix of the estate of
Charles Lincoln Bennett, deceased, against

Thomas E. Cox, doing t
Service Station, and indi
a judgment for plaintiff, dt

Affirmed.

Jackson, Rivcs & Pettus,
for appellant.

Chester Austin and Cliffr
of Birmingham, for appell

STAKELY, Justice.
This is a suit brought

Bennetf as . Administratr
Homicide Acg Code 1940,'
the wrongful death of her I
Lincoln Bennett. The
Company and Thomas E. (
as parties defcndant. The
The Star Provision Con
defendanL The case was r

jury on one count chargir
gence, the plea of the ge

the plea of contributory ne1

was verdict and judgment
and hence this appeal.

Charles Lincoln Benne
injured on September 2
rvalking east on Avenue C

sidewalk at or near the S

section of Avenue C and 2l
in the City of Birmingham.
hy a truck of the Star Pror
which was being backed ;
walk by an ernployee of i
from out of a filling stati
Thomas E. Cox. There wa
the horn lvas blol'rn or ar
that the truck was about to
sideu-alk. The truck had I

filling station to be washed

Assignment N<

. tll In his opening ar
Jury counsel for plaintiff rr
over the objection of defen
the I\tunicipal Code of the (
ham, as follows:

"It shall be unlarvful for
anY vehicle to emerge from
I'arage, filling station, or pl
lnto or upon any sidewalk,
unless he has first brought
.a complete stop within twer