Kiyose v. Trustees of Indiana University

• Decision Date: 18 September 1975
• Docket Number: No. 1--1074A152,1--1074A152
• Citation: 333 N.E.2d 886,166 Ind.App. 34
• Parties: Gisaburo KIYOSE, Appellant (Plaintiff below), v. The TRUSTEES OF INDIANA UNIVERSITY et al., Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 886

333 N.E.2d 886

166 Ind.App. 34

Gisaburo KIYOSE, Appellant (Plaintiff below), v. The TRUSTEES OF INDIANA UNIVERSITY et al., Appellees (Defendants below).

No. 1--1074A152.

Court of Appeals of Indiana, First District.

Sept. 18, 1975.

Brent A. Barnhart, Bloomington, for appellant

Cliff K. Travis, Alvin R. York, Bloomington, for appellees.

LYBROOK, Judge.

Plaintiff-appellant Gisaburo Kiyose initiated this action against defendants-appellees The Trustees of Indiana University, et al. seeking recovery for damages allegedly resulting from the termination of his employment with Indiana University. Plaintiff's original complaint alleged the existence and breach by defendants of an oral contract of lifetime employment. Plaintiff's amended complaint restated the allegations of the original complaint and added thereto a second count seeking recovery on a theory of interference with prospective advantage. This appeal stems from the ruling of the trial court sustaining defendants' motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief could be granted. Ind. Rules of Procedure, Trial Rule 12(B)(6).

The following issues are presented for review:

(1) Whether plaintiff's action on the alleged oral contract of employment is barred by paragraph Fifth of IC 1971, 32--2--1--1 (Burns Code Ed.), more commonly (2) Whether plaintiff's second count of complaint states a claim upon which recovery may be had in tort.

known as the one year clause of the Statute of Frauds.

The following statement of facts is drawn from the allegations of plaintiff's amended complaint: When this action was filed, plaintiff was a member of the teaching faculty at the Bloomington campus of Indiana University, holding the rank of Assistant Professor. He had been appointed to this rank in May, 1973, after earning the degree of Doctor of Philosophy in East Asian Languages. Prior to such appointment, plaintiff had served as a Lecturer in the Department of East Asian Languages, the period of such service being from September, 1966, to April, 1973. Prior thereto, he had served for two years as a Teaching Associate in the same department.

Plaintiff alleged that throughout the period during which he served as a Lecturer, defendants and their agents assured him that upon obtaining the degree of Doctor of Philosophy he would be appointed to the rank of Assistant Professor, an appointment which according to practice, custom and usage at the University was for a term of three years. Plaintiff further alleged that during the years 1965 through 1971, he was offered five different positions with other institutions of higher learning but rejected each in reliance upon representations by defendants and their agents that he could expect a permanent position with Indiana University upon obtaining the degree of Doctor of Philosophy. Plaintiff therefore alleged the existence of a contract between himself and Indiana University 'that upon obtaining a Ph.D., plaintiff Kiyose would receive perpetual life-time appointments at Indiana University, commencing with a three (3) year appointment as Assistant Professor.

After obtaining the degree of Doctor of Philosphy in April, 1973, and being appointed to the rank of Assistant Professor, plaintiff was notified that he would not be reappointed for the academic year 1974--1975. Thereupon, plaintiff initiated this action. Damages were alleged to have resulted from the shrinkage of the academic job market from the period during which plaintiff was offered positions from other institutions.

For purposes of this appeal, the factual allegations of plaintiff's amended complaint must be accepted as true. Millen v. Dorrah (1974), Ind.App., 316 N.E.2d 403; Sanders v. Stewart (1973), Ind.App., 298 N.E.2d 509. We must therefore assume the existence of the alleged oral agreement between plaintiff and defendants. Our task is to determine whether plaintiff's allegations were sufficient to avoid dismissal pursuant to defendants' TR. 12(B)(6) motion.

The basic standards to be employed in testing a complaint against a motion to dismiss for failure to state a claim upon which relief can be granted were summarized by our Supreme Court in State v. Rankin (1973), Ind., 294 N.E.2d 604. Therein, it was written:

'This Court has noted that in a typical 12(B)(6) situation, a complaint is not subject to dismissal unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts. Sacks v. American Fletcher National Bank and Trust Co. (1972), (258) Ind. (189), 279 N.E.2d 807. See also Gladis v. Melloh (1971), (149) Ind.App. (466), 273 N.E.2d 767; Wyant v. Lobdell (1972), (150) Ind.App. (675), 277 N.E.2d 595. The rules do not require that the complaint state all the elements of a cause of action. It must be remembered that our new rules are based on so-called notice pleadings in which a plaintiff essentially need only plead the operative facts involved in the litigation. . . . Although a statement of the theory may be highly desirable, it is not required. When no evidence has been

heard or no affidavits have been submitted, a 12(B)(6) motion should be granted only where it is clear from the face of the complaint that under no circumstances could relief be granted.'

I.

The first count of plaintiff's amended complaint was dismissed on the ground that the action was barred by paragraph Fifth of the Indiana Statute of Frauds, being IC 1971, 32--2--1--1, supra, which provides:

'No action shall be brought in any of the following cases:

'Fifth. Upon any agreement that is not to be performed within one (1) year from the making thereof; unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; excepting, however, leases not exceeding the term of three (3) years. (1 R.S. 1852, ch. 42, § 1, p. 299.)'

Count one of the amended complaint alleged that plaintiff and defendants agreed that if plaintiff would decline acceptance of positions being offered to him at other institutions and remain at Indiana University and obtain the degree of Doctor of Philosophy, the defendants would, upon plaintiff's attainment of such degree, appoint him to the position of Assistant Professor and thereafter continue to appoint him to teaching positions for the term of plaintiff's life.

Plaintiff advances several arguments in support of his position that the agreement alleged is not within the Statute of Frauds and that the ruling of the court dismissing count one was error. The first argument, which we find dispositive of the issue, is that the agreement alleged is a contract of lifetime employment and that to such contracts the statute has no application.

In support of his position, plaintiff directs our attention to the decisions Toni v. Kingan & Co. (1938), 214 Ind. 611, 15 N.E.2d 80; Cox v. Baltimore and Ohio Southwestern Railroad Co. (1913), 180 Ind. 495, 103 N.E. 337; and Pennsylvania Co. v. Dolan (1892), 6 Ind.App. 109, 32 N.E. 802. Plaintiffs in each of these cases were employees who had been injured during the course of employment. In consideration for their promises to forebear prosecution of claims for damages resulting from the injuries, the employers agreed to provide them with lifetime employment. However, plaintiffs were subsequently discharged by their employers. In each decision, the court rejected the employer's argument that the oral promise of lifetime employment was within the Statute of Frauds.

The courts of this State have consistently held that the one year clause of the Statute of Frauds has no application to contracts which are capable of being performed within one year from the making thereof. Frost v. Tarr (1876), 53 Ind. 390; Holcomb & Hoke Manufacturing Co. v. Younge (1937), 103 Ind.App. 439, 8 N.E.2d 426; Hurd v. Ball (1957), 128 Ind.App. 278, 143 N.E.2d 458. Thus, an oral agreement the performance of which is dependent upon the happening of a certain contingency is not encompassed by the Statute, provided the contingency is one which could possibly occur within one year. Freas v. Custer (1929), 201 Ind. 159, 166 N.E. 434; Purity Maid Products Co. v. American Bank and Trust Co. (1938), 105 Ind.App. 541, 14 N.E.2d 755. In a contract of lifetime employment, death is the contingency which renders the agreement fully performed. Since the contingency is one which may occur at any time, such a contract by its terms is capable of being performed within one year and is therefore not within the Statute. See, 2 Corbin, Contracts § 446 (1950).

The exact date upon which the alleged agreement between plaintiff and defendants was formed cannot be ascertained from an examination of the amended complaint. At the same time, however, it does not affirmatively appear that the alleged agreement could not have been performed within a year from its making. There is nothing to indicate that plaintiff could not have completed his required performance within a year, regardless of the formation date of the agreement and, of course, plaintiff could have upon the fulfillment of the conditions necessary to bind defendants immediately died, thereby rendering the agreement fully performed.

Defendants argue that the agreement alleged in the amended complaint is analogous to a contract of employment which was determined to be within the one year clause of the Statute of Frauds in the case of ITT Cannon Electric, Inc. v. Brady (1967), 141 Ind.App. 506, 230 N.E.2d 114. Therein, following discharge by his employer, the plaintiff brought an action seeking damages for breach of an alleged oral contract of employment providing for a minimum term of eighteen months. The contract was held to be within the statute on...