Peterson v. Culver Educational Foundation

• Decision Date: 18 March 1980
• Docket Number: No. 3-1179A309,3-1179A309
• Citation: 402 N.E.2d 448
• Parties: David L. PETERSON, Plaintiff-Appellant, v. The CULVER EDUCATIONAL FOUNDATION and Ben A. Barone, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 448

402 N.E.2d 448

David L. PETERSON, Plaintiff-Appellant, v. The CULVER EDUCATIONAL FOUNDATION and Ben A. Barone Defendants-Appellees.

No. 3-1179A309.

Court of Appeals of Indiana, First District.

March 18, 1980.

Richard D. Boyle, Boyle, Atlas, Hyatt & Reuben, Indianapolis, Eugene N. Chipman, Chipman, Morrison & Humphrey, Plymouth, for plaintiff-appellant.

Roland Obenchain, Don G. Blackmond, Jones, Obenchain, Johnson, Ford, Pankow & Lewis, South Bend, for defendants-appellees.

NEAL, Judge.

Originally, Col. Ben A. Barone, individually and as superintendent of Culver Military Academy, and the Culver Educational Foundation of Culver, appealed in Cause No. 3-777-A-160 from a judgment of the Kosciusko Circuit Court upon a jury verdict for $12,495 ¹ in favor of David L. Peterson in his action for wrongful discharge against defendants Barone, et al. ² Also, plaintiff Peterson appealed in Cause No. 3-1179-A-309 from a summary judgment granted by the Marshall Circuit Court in favor of defendants Barone and the Culver Educational Foundation in a defamation action brought by plaintiff Peterson. This court, on its own motion, consolidated the two appeals for decision and opinion.

The issues raised for our review are as follows:

I. Is there sufficient evidence to support the judgment that defendants wrongfully discharged plaintiff and is such judgment contrary to law?

II. Is there sufficient evidence to support the judgment for punitive damages against defendants and is such judgment contrary to law?

III. Is plaintiff barred by the doctrine of res judicata from pursuing his defamation action?

The judgment of the Kosciusko Circuit Court is affirmed in part and reversed in part. The judgment of the Marshall Circuit Court is reversed.

ISSUE I

The parties stipulated at trial to certain facts as follows: Plaintiff Peterson had a contract of employment with Culver Educational Foundation as a senior instructor from September 1, 1974, until June 30, 1975. He was suspended from that position by defendant Barone on May 16, 1975, and discharged the following day. The amount of $2,495 represented wages due under the contract if it were determined that the plaintiff was entitled to compensatory damages.

Plaintiff's action for wrongful discharge resulted in a jury verdict in his favor.

The parties agree that a contract of employment for a definite term containing, as here, no provisions with respect to termination, may be terminated before the expiration of the term by mutual agreement or for cause. Seco Chemicals, Inc., Division of Stan Sax Corporation v. Stewart, (1976) Ind.App., 349 N.E.2d 733; Rochester Capital Leasing Corporation v. McCracken, (1973) 156 Ind.App. 128, 295 N.E.2d 375. Defendants, however, incorrectly rely on School City of Crawfordsville v. Montgomery, (1933) 99 Ind.App. 526, 187 N.E. 57, for the proposition that defendant Barone's decision to dismiss the plaintiff is not reviewable except for bad faith, corruption, fraud or gross abuse of discretion. That rule is limited to situations where power has been conferred upon an administrative officer or board, either by statute or by contract, to remove a teacher for cause, and such is not the case here.

Inasmuch as the plaintiff did not agree to his dismissal, we must inquire into the evidence as to whether his dismissal was justified by a cause for discharge.

78 C.J.S. Schools and School Districts § 8 (1952) says, at 617-18:

"Contracts between private schools and teachers or other instructors are governed, in general, by the rules applicable to other contracts of employment . . . Teachers in private schools occupy merely contractual positions as employees in relation to the trustees and the school board, and they undertake, in the absence of a special contract, to exercise reasonable skill and judgment, and ordinary care and diligence, in rendering their services. . . .

. . . A teacher may be dismissed for any just cause, or for any improper conduct or behavior likely to be hurtful or injurious to the standing or reputation of the school or to interfere with the progress, training, or discipline of its pupils . . . The right to remove or discharge a teacher for any neglect of duty or improper conduct does not justify his removal on grounds merely of expediency or convenience." (Footnotes omitted.)

Seco Chemicals Inc., Division of Stan Sax Corporation, supra, quoted 53 Am.Jur.2d Master and Servant § 51 (1970) in 349 N.E.2d at 738-739 as follows:

"Without doubt an employee, although engaged for a definite term of service, may be dismissed because of inefficiency, unskilfulness, neglect, or carelessness. The law implies a stipulation or undertaking by an employee in entering into a contract of employment that he is competent to perform the work undertaken and is possessed of the requisite skill and knowledge to enable him to do so, and that he will do the work of the employer in a careful manner. If he is not qualified to do the work which he undertakes The degree of skill, care, diligence, and attention imposed by the implied possession of competency, knowledge, skilfulness, etc., on the part of one entering into a contract of employment is that of ordinary and reasonable skill, care, and diligence; he cannot be discharged on the ground of incompetency, negligence, etc., merely because he fails to employ the highest degree of skilfulness and care known in the trade, unless the contract of employment expressly stipulates for such degree of skill and care, or unless the employee represents that he possesses such."

if he is incompetent, unskilful or inefficient, or if he executes his work in a negligent manner or is otherwise guilty of neglect of duty, he may lawfully be discharged before the expiration of his term of employment. . . .

The Seco Chemicals court emphasized that an employer's right to discharge can be based on material matters but not on trivialities.

Defendants argue that the evidence will not support a jury finding that the plaintiff was discharged without cause. They contend he was discharged for cause because of: 1) hugged, kissed, and touched a female student, discussed sex and drug problems with her, and made suggestive statements to her; 2) encouraged a second female student to cheat on a chemistry quiz, discussed sex with her and offered her contraceptives, hugged her, and made suggestive statements to her; and 3) countermanded instructions given by male student officers to an underclassman and made derogatory remarks about these student officers and one other male student.

In Rochester Capital Leasing Corporation, supra, this court said, 295 N.E.2d at 378:

"(T)he question of whether an alleged act occurred is a question of fact for the jury. Where the facts are undisputed, the evidence may be such as to justify discharge as a matter of law. However, where the facts, even though undisputed, are such that reasonable men might differ as to whether the alleged misconduct is so inconsistent with the employer-employee relationship as to justify discharge, the question is one of fact for the jury."

This court is limited to an examination of that evidence and the reasonable inferences drawn therefrom which support the verdict in determining if sufficient evidence of probative value exists. When the evidence is in conflict and reasonable minds can differ on an issue or reach different conclusions, we are bound by the jury's findings. City of Indianapolis, Department of Metropolitan Development v. Heeter, (1976) Ind.App., 355 N.E.2d 429.

The evidence most favorable to the jury's finding that the plaintiff was wrongfully discharged is the testimony of the plaintiff himself in which he directly contradicted much of the testimony offered against him and offered different interpretations of occurrences upon which other testimony was based.

The plaintiff said that he considered counseling students about their personal and scholastic problems a part of being a good teacher, and that he so counseled at least 30 students each school year, about one-fourth of them girls. As a part of this effort, he testified that he did discuss sex and drugs with these students, and with one particular student who lodged charges against him with the school and who testified against him at trial, that he did inquire as to her virginity in an attempt to discover what specifically was troubling her, that he did express his love of her in the sense that he loved her as he loved mankind in general, and that he encouraged her to come to him for help with her problems. He said that she had confided in him her use of amphetamines and that he did not report this to school authorities because it was told to him in confidence. He insisted that he had never kissed the girl or made advances toward her, and that he had never offered contraceptives or drugs to any student.

Plaintiff testified that he never countermanded the commands of student officers, criticized them in an improper manner, or made derogatory remarks about them. He Where the evidence is in conflict, we cannot weigh the evidence, assess relative credibilities of witnesses, nor substitute our judgment or conclusions for those of the trier of fact. American Fletcher National Bank and Trust Company v. Flick, (1969) 146 Ind.App. 122, 252 N.E.2d 839. The jury heard the above-summarized testimony of the plaintiff as well as the testimony of others. The jury weighed the evidence and assessed the demeanor and credibility of the witnesses and determined that the conduct of the plaintiff did not justify his discharge. We cannot say, as a matter of law, that the evidence is insufficient to support such a determination.

said that while assigned to supervise a barracks as barracks inspector he did make suggestions to troop leaders. He also told of one incident involving three student officers which resulted in his reporting them to school authorities for showing disrespect to a faculty member. He...