Barnes v. Mendenhall, 14423.

• Decision Date: 23 December 1932
• Docket Number: No. 14423.,14423.
• Citation: 98 Ind.App. 229,183 N.E. 556
• Parties: BARNES v. MENDENHALL et al.
• Court: Indiana Appellate Court

98 Ind.App. 229

183 N.E. 556

BARNES

v.MENDENHALL et al.

No. 14423.

Appellate Court of Indiana, in Banc.

Dec. 23, 1932.

Appeal from Superior Court, Vigo County; Linus A. Evans, Judge.

Action by Grace Barnes against William F. Mendenhall and others. From a judgment for defendants, plaintiff appeals.

Reversed, with directions.

Paul R. Shafer and Thomas F. O'Mara, both of Terre Haute, for appellants.

Paul N. Bogart and Chas. E. Piety, both of Terre Haute, for appellee.

CURTIS, C. J.

This was an action by the appellant against the appellees to set aside the alleged illegal cancellation of her “indefinite contract” as a “permanent teacher” of the appellee, school city of Terre Haute, Ind., and asking that an injunction be granted her to restrain the appellees from continuing to breach the alleged contract of the appellant as permanent teacher and praying for judgment for the amount of the salary accruing to her as such teacher pending the litigation.

The issues were joined upon the appellant's amended complaint in one paragraph to which the appellees filed separate demurrers. The court sustained the demurrers, and the appellant excepted to that ruling and refused to plead over, electing to stand on the ruling of the court on the demurrers. The court rendered judgment as follows: “It is therefore ordered, adjudged and decreed by the court that the plaintiff take nothing by her action herein and that said defendants recover of and from the plaintiff their costs in this action, to which ruling and opinion of the court the plaintiff at the time excepted.” An appeal was then prayed and perfected.

The errors relied upon for reversal are: “1. The court erred in sustaining the several demurrers of the defendants to the amended complaint of the appellant, to which rulings of the court, the appellant at the time excepted. 2. The court erred in rendering judgment against the appellant, and in favor of the appellees upon the refusal of the appellant to plead further and the appellant's election to stand on the ruling of the appellees' several demurrers, to which action of the court the appellant at the time excepted.”

The amended complaint is very voluminous, covering more than 20 pages of the record. We shall attempt to set forth only the salient parts. Among other things it alleges: That the appellant has a life license issued to her by the duly constituted authorities of the state of Indiana, under date of December 1, 1923, the same being a first grade license to teach all subjects and grades in the elementary grades; that she is a permanent teacher, and has been under contract with the school city of Terre Haute for more than 22 years immediately preceding the filing of this petition, and the holder of a continuous permanent teacher's contract with said school city, which contract was duly recognized by the school city under date of May 14, 1929, by a statement of that date, a part of which we quote as follows:

“Terre Haute Public Schools,

“May 14, 1929

“Grace Barnes: Our records show that you are a permanent teacher according to the provisions of an Act of the General Assembly, approved March 8, 1927, commonly known as the Teachers' Tenure Law. *** In case you desire to continue your teaching work next year, please sign promptly and deliver one copy of this notice to your principal.

“George C. Carroll

“Superintendent

“Received this 27th day of May, 1929.

“Grace Barnes

“Teacher.”

It is further alleged that on the 9th day of May, 1930, the said school city, through George Carroll, superintendent of schools, notified the appellant in writing that at 8 o'clock p. m. June 10, 1930, the school board of said school city would consider the cancellation of appellant's indefinite teacher's contract; that within 5 days after receiving said notice the appellant made a written request of said appellees demanding the reason for the cancellation of said contract; that under date of May 15, 1930, the said school city by its said superintendent of schools notified the appellant in writing that the reason for such consideration to cancel said contract was “a justifiable decrease in the number of teaching positions in the schools of Terre Haute School City”; that the appellant, within 5 days after receiving the last above notice, requested that she be given a hearing on the reason set out by the appellees; that on May 23, 1930, the said school city by its said superintendent notified the appellant that the hearing requested had been set for May 28, 1930, at 5 o'clock in the afternoon; that at the time and place for said hearing the appellant appeared, and by agreement of all parties the hearing was continued until June 6, 1930. It is further alleged:

“That then and there on the 6th day of June, 1930, there was held a pretended hearing; that at said pretended hearing the School City of Terre Haute, Indiana, by and through its Board of trustees, the defendant herein, made a fuller statement of the alleged reason to be considered by the Board as the reason for the cancellation of said indefinite teacher's contract, which said fuller statement was to the effect that to fill the positions in the schools of the School City of Terre Haute for the next year, the Board will have Tenure Teachers and in addition, some non-tenure teachers in elementary, high school, junior high school, grade schools and in all departments of the School City of Terre Haute; that the Board claimed the right to cancel permanent teachers' contracts even though the Board retained non-tenure teachers in the school to perform the same duties which the discharged permanent teachers were licensed to perform, and that the question which the Board would decide was whether the Board had the right to dismiss tenure teachers and take non-tenure teachers in their place; and that the Board had in fact elected to employ teachers for the School City of Terre Haute in all departments thereof for the ensuing year who are not permanent teachers as defined under the said act.

“That the proposed reduction would consist of, in part, the discharge of permanent teachers and the discharge of non-permanent teachers. That the said Board then and there declared and informed the plaintiff that the sole question to be determined was one of the power and right of the School Board of the City of Terre Haute to cancel plaintiff's indefinite contract as a permanent teacher of said School corporation, on account of there being a reduction in the total number of teachers employed in the School City even though the Board did retain non-permanent teachers to teach in positions which the plaintiff was licensed to teach, and that plaintiff by and through her attorneys, then and there stated and contended that said defendants did not have power or authority to cancel and could not legally cancel plaintiff's permanent contract with the defendant School City of Terre Haute, Indiana.

“That said fuller statement made as aforesaid by said board at the time and place of said hearing on June 6th, 1930, had not been made or conveyed or delivered to said plaintiff in writing prior to said time; and in truth and fact, consisted of a different reason from the reason set out in said written statement furnished to said plaintiff by said Board on the 15th day of May, 1930, and contained in the written reason furnished to plaintiff. That the reason set out in said fuller statement made by said Board at the time and place of the hearing is not a legal cause for the cancellation of plaintiff's contract and is not comprehended within the statutory reason of a justifiable decrease in the number of teaching positions; that in truth and fact, the said Board did not then contemplate or consider a reduction in the total number of teaching positions in said School system equal to the total number of non-permanent teachers then and there in their employ, but that said Board did then and there consider only reductions in the total number of positions retaining the number of teaching positions in said School City greater than the total number of permanent teachers having an indefinite contract with said School City and licensed to teach in said School City; that in truth and fact, said Board did then and there illegally, and unlawfully declare cancelled said indefinite contract of this plaintiff upon an erroneous interpretation of the law of the State of Indiana, in that said Board then and there erroneously interpreted and construed the laws of the State of Indiana to authorize the said Board to cancel the indefinite contract of any permanent teacher if the Board found that there should be any reduction whatsoever in the total number of teaching positions in said School City even though the Board contemplated employing and did employ a non-permanent teacher to teach in a position which said discharged permanent teacher was licensed to teach.

“Plaintiff further avers that thereafter, on the 10th day of June, 1930, on or about 8 o'clock p. m. of said day said defendants, trustees constituting the School Board of the School City of Terre Haute, Indiana, together with the Superintendent of Schools of said School City, then and there met in the Administration Building in the School City of Terre Haute, Indiana, in compliance with the notice heretofore mailed to this plaintiff; that said Board of Trustees, the defendants as aforesaid, and each of them, then and there proceeded unlawfully, illegally, and erroneously to cancel said permanent teacher's contract of this plaintiff as said Board of Trustees did then and there erroneously, illegally, and unlawfully act upon the cancellation of said teacher's contract under the erroneous, mistaken and unlawful interpretation of the law announced by the said Board at the time and place of said hearing, and acted upon by said Board in the pretended cancellation of said contract and throughout the said proceedings, which erroneous, mistaken and unlawful interpretation of the law...