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Fertich v. Michener.

judgment in the proceedings to obtain an order for the sale of the land to pay the debts of the estate of John Ward, deceased, did not conclude the appellants, still this appeal must fail. Conceding that when the land was acquired and title taken, as it was by John Ward, in 1850, and that it was taken in trust, there can be no recovery, because the evidence shows that more than twenty years prior to the time that this action was brought there was an open disavowal of the trust. The evidence, indeed, shows more than a mere disavowal of the trust, for it shows that the appellants acquiesced in the intestate's assertion of title. There is evidence very clearly showing that the intestate treated the land as his own, and that the appellants dealt with him as the owner. Under this evidence there can be no recovery, for it is well settled that where there is a disavowal of the trust, and it is brought to the notice of the beneficiary, the statute will run. As said in Raymond v. Simonson, 4 Blackf 77: "But so soon as the trustee denies the right of his cestui que trust, and his possession becomes adverse, lapse of time from that period may constitute a bar in equity." 2 Perry Trusts (3d ed.), section 864; Wood Limitation of Actions, 433.

Judgment affirmed.

Filed June 18, 1887; petition for a rehearing overruled Sept. 27, 1887.

No. 13,019.

FERTICH V. MICHENER.

SCHOOLS.-Rules and Regulations.- Power of School Boards to Adopt.-Under the statutes of this State, construed in connection with the incidental powers of corporations, the various school boards, and other educational authorities, have power to adopt appropriate rules and regulations for the government of the schools under their control.

Fertich v. Michener.

SAME.-Method of Adopting Rules.-Superintendent or Teacher May Make.— It is not necessary that all rules for the discipline and government of schools shall be made a matter of record by the school board, or that every act, order or direction affecting their management shall be authorized or confirmed by a formal vote; but any reasonable rule adopted by a superintendent or a teacher, not inconsistent with some statute or some other rule prescribed by higher authority, is binding upon the pupils. SAME.-City Schools.-Authority of Superintendent.-A rule requiring the superintendent of city schools to visit weekly all the schools under his charge, and to see that the best methods of instruction are adopted, confers upon him authority, if it were otherwise wanting, to order and promulgate such additional reasonable rules as the best interests of the schools may require.

SAME.-Tardy Pupils.-Exclusion from School-Room During Opening Exercises.-Reasonableness of Rule.-A rule requiring tardy pupils to remain either in the hall of the school building, which is provided with heat, or in the office of the principal, until the opening exercises, lasting from ten to fifteen minutes, are concluded, in order that such exercises may not be interrupted or disturbed, is in itself a reasonable regulation. SAME.-Enforcement of Rules.-Must be Reasonable Under the Circumstances.— In the enforcement of all rules for the government of a school, due regard must be had to the health, comfort, age, mental and physical condition of the pupils, and to the circumstances attending each particular emergency, and the condition of the weather, the infirmity of a pupil, and the like, may require relaxation in their strict enforcement. SAME.- Unreasonable Enforcement of Reasonable Rule.-A school regulation must not only be reasonable in itself, but its enforcement must also be reasonable under all the circumstances. The habit of locking the doors of a school-room during the opening exercises is not an unreasonable enforcement, under ordinary circumstances, of a rule requiring pupils to remain in the hall during that time; but if the weather is unusually severe, and proper steps are not taken for the comfort of children thus excluded, such method of enforcement is unreasonable and improper.

SAME.-Liability of School Officer.-Error of Judgment.-A school officer is not personally liable for a mere mistake of judgment in the government of his school; but to create liability it must be shown that he acted in the matter complained of wantonly, wilfully or maliciously. SAME.-Detention of Pupil After School Hours.-False Imprisonment.—The detention of a pupil for a short time after school hours, as a penalty for some omission or misconduct, is one of the recognized methods of enforcing discipline and promoting the progress of the pupils in the common schools, and although the detention be mistaken it possesses

Fertich v. Michener.

none of the elements of false imprisonment, unless imposed from wanton, wilful or malicious motives. SAME.-Reasonableness of Rule a Question of Law.-Instruction.—It is for the court to determine, as a matter of law, whether or not a rule is a reasonable one, and an instruction which confounds the reasonableness of the rule with its unreasonable enforcement, and submits the matter of reasonableness to the jury as a hypothetic question, dependent upon the existence or non-existence of certain enumerated facts, thus making the question of validity one of mixed law and fact to be determined by the jury, is erroneous.

From the Shelby Circuit Court.

D. L. Wilson, J. B. McFadden and L. F. Wilson, for appellant.

B. F. Love, O. J. Glessner, E. K. Adams, L. J. Hackney, H. C. Morrison and N. B. Berryman, for appellee.

NIBLACK, J.-This was an action by Nora S. Michener, a minor child, acting through Louis T. Michener, her father and next friend, against William H. Fertich for alleged injuries received while attending a public school of which Fertich was the superintendent.

The complaint was in three paragraphs. The first charged that the plaintiff, during the school year commencing in September, 1884, was a resident of the city of Shelbyville in this State, and was a pupil at one of the public schools of that city; that, on the morning of the 22d day of January, 1885, which was an extremely cold day, the plaintiff, during school hours, repaired to the room in the public school building in which she was accustomed to receive, and for the purpose of receiving, instruction from her teacher; that she found the doors of her school-room locked, by reason of which she was unable to gain admittance, and was compelled to return to her home through snow and cold, which resulted in her having both of her feet frozen, and being thereby permanently injured, to her great damage; that she was so excluded from her school-room by order of the defendant, and that her injuries were not in any respect caused by any fault or negligence on her part.

Fertich v. Michener.

The second paragraph charged the defendant with having, on the 15th day of January, 1885, wrongfully and unlawfully restrained the plaintiff of her liberty for a period of thirty minutes.

The third paragraph charged that, on the 15th day of October, 1884, a certain rule for the government of the public school which the plaintiff was attending, as in the first paragraph stated, was in force and was in the following words: "When pupils respectfully ask permission to leave their room they must be permitted to do so;" that on that day the plaintiff, having a pressing necessity to do so, respectfully asked permission to leave her room, but that her teacher, acting under the order of the defendant, refused such permission, by reason of which she, the plaintiff, was subjected to great suffering and annoyance, and to consequences both repulsive and humiliating, and to her great damage.

The defendant answered:

First. That the hall in the school-building leading to the plaintiff's school-room, and where she entered the building and remained until leaving for home, was, on the morning complained of, comfortably warmed by a furnace immediately under it; that the daily sessions of the school were from 8:45 A. M. until 11:45 A. M., and from 1:15 P. M. until 4:15 P. M., which times had been fixed and notice thereof published by the board of school trustees of the city of Shelbyville, and of which the plaintiff had been fully informed; that, prior to the commission of the alleged grievances stated in the first paragraph of the complaint, the plaintiff had been instructed by her teacher that if she came to school after 8:45 A. M. and before 9 o'clock A. M., she should remain in the hall of the school-building, or go into the office of the principal of the school, in the same building, and remain there until the conclusion of the morning exercises, which last from ten to fifteen minutes, and which at no time extend beyond 9 o'clock A. M.; that the plaintiff, on the morning of the day named in said first paragraph of the com

Fertich v. Michener.

plaint, came to the school-building after the morning exercises had begun, and, finding that she was not in time for such exercises, remained in the hall, which was then comfortably warm, for a period of seven minutes, when she left for home of her own accord, and without the knowledge or consent either of her teacher or of the defendant, thereby unnecessarily exposing herself to the snow and cold; that at no time during that morning was the defendant nearer than a distance of a half mile from said school-building; that if the plaintiff received any injury on the morning in question it was by reason of her own fault and negligence, and not on account of any act or omission of the defendant.

Secondly. Repeating the substantial facts set up in the first paragraph, but in a different and more condensed form.

Thirdly. That, as to the charge contained in the second paragraph of the complaint, the plaintiff was never kept or detained in the school-building, to which reference has been made, later than 4:15 P. M., the time fixed by the school trustees for the closing of the daily sessions of the school. Fourthly. In general denial.

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Issues were formed upon the first, second and third paragraphs of the answer by a reply in denial. A trial resulted in a verdict for the plaintiff and in a judgment on the verdict. This action was avowedly commenced, and this appeal is seemingly prosecuted, more for the purpose of settling some general principles concerning the management of our public schools, than on account of the amount of damages actually involved in the controversy.

It was shown by the evidence that the school trustees of the city of Shelbyville, in May, 1884, appointed Fertich, the appellant, superintendent of the public schools of that city for the ensuing school year, and that he was, in connection with his duties as such superintendent, to perform some services as a teacher in the city high school, if required to do so; also, that such trustees had already adopted and promulgated

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