This action is brought under the statute, which provides that “a child unlawfully excluded from any public school shall recover damages therefor in an action of tort, to be brought in the name of such child by his guardian or next friend against the city or town by which such school is supported.” Gen. Sts. c. 41, § 11. Pub. Sts. c. 47, § 12.
The evidence, viewed in the light most favorable to the plaintiff, tended to show that he was guilty of several acts of disobedience and insubordination in the school, for which the teacher sent him to his home; that afterwards his father returned with him and had an interview with the principal of the school, in which the principal said that the school committee would not allow him to punish the plaintiff unless he said that he was willing to be punished, and, upon the plaintiff’s refusing to say so, he told him “ to go home, and that he would not have him in school unless he said he was willing to be punished.” The father afterwards requested the teacher to state the grounds upon which the boy had been “ excluded from school; ” and received an answer which is set forth in the report. Thereupon, without any appeal to the school committee, this action was brought.
We are of opinion that the Superior Court rightly ruled that the action could not be maintained. The intention of the statute is to give a remedy to a child who is unlawfully excluded from school by the proper authorities, who in this matter represent the city or town. A teacher has no authority to exclude a child from school, unless he acts under the order of the school committee, of which there was no evidence in this case. The laws vest in the school committee the charge and superintendence *106of the schools. They alone have the right to exclude any child from school.
If a teacher sends a child home from school, there is no hardship in requiring the parent to appeal to the committee. Unless the teacher is acting under some order of the committee, this is the only way of ascertaining whether the proper authorities, for whose action the city or town is made responsible, have excluded the child. On the other hand, to hold that, whenever a teacher sends a child home as a punishment, the parent may treat it as an expulsion, and sue the city or town, would lead to vexatious litigation and impair the discipline and usefulness of the schools. Spear v. Cummings, 23 Pick. 224. Sherman v. Charlestown, 8 Cush. 160. Hodgkins v. Rockport, 105 Mass. 475. Learock v. Putnam, 111 Mass. 499.
■ The plaintiff in this case therefore has failed to show an expulsion from school for which the city is liable under the statute.
Judgment on the verdict.