Sirmon v. Roberts

• Decision Date: 14 January 1946
• Docket Number: 4-7800
• Citation: 191 S.W.2d 824,209 Ark. 586
• Parties: Sirmon v. Roberts
• Court: Arkansas Supreme Court

191 S.W.2d 824

209 Ark. 586

Sirmon v. Roberts

No. 4-7800

Supreme Court of Arkansas

January 14, 1946

Appeal from Howard Circuit Court; E. K. Edwards, Judge.

Affirmed.

Boyd Tackett, for appellant.

Geo E. Steel, for appellee.

Griffin Smith, Chief Justice. Mr. Justice Millwee did not participate in the consideration or determination of this case.

OPINION

Griffin Smith, Chief Justice.

The motion for mandamus, denied below, is based upon Act 319 of 1941, as amended by Act 136 of 1943.

Athens School District No. 10 of Howard County employed Mrs. Farris Sirmon to teach the term ending February 23, 1945. Approximately three weeks before expiration of the 1944-'45 period for which Mrs. Sirmon had been expressly retained, the District contracted with Mrs. Travis Strasner for the succeeding term. T. W. Roberts, Ben Mullen, and J. Y Harris, as directors, were made defendants in the action brought by Mrs. Sirmon August 2, 1945. It was alleged that the District had arbitrarily refused to make written renewal of Mrs. Sirmon's contract. The applicable statute is copied in the margin. ^[1] We think the case turns on answer to the question, Did Mrs. Sirmon sustain her allegation that the contract made in 1944 had not been superseded?

Appellant's attorney, in objecting to certain testimony, stated the issues to be: (a) whether [timely] written notice was given Mrs. Sirmon that her services would not be required; (b) whether Mrs. Sirmon gave written notice of her resignation, and (c) whether she was reemployed by another contract.

It is agreed that written notice was not given by either side. The Court, in effect, found that Mrs. Sirmon either consented to abrogation of the contract or in fact resigned. The District employs but one teacher, and funds are available for one only.

While there is considerable incompetent testimony in the record, evidence properly admitted shows that the directors, as a board, met from time to time with some present and others absent; and that these meetings were often informal. But the issues here raised do not relate to the manner in which board meetings were held. When we determine whether the Court erred in its conclusion that Mrs. Sirmon did not have a right to require manual execution and delivery of a renewal contract, other matters become secondary.

A majority of the directors testified that Mrs. Sirmon had stated that if the board did not want her to teach during the ensuing term she did not want to do so, and that she expected to go to Washington, D. C., and remain there. She did go to Washington, but returned.

Mullen was emphatic in his assertion that Mrs. Sirmon wanted him to discuss with other members of the board the suggestion that an extra month be taught in the Spring of 1945. After Mullen had talked with associate members Mrs. Sirmon returned; and (quoting Mullen): "We agreed to let her finish that month -- it wasn't quite out -- and hire a new teacher. Question: Did you tell her that? A. She came up to my house and wanted to know what I had done about it. I told her we agreed to let her finish out that [extra] month and we were going to hire a new teacher. Q. What did she say? A. She said, 'All right, hire a new teacher; but I am going to quit. I will never teach another school in Athens: I am going to Washington.'"

One obvious purpose of the statute requiring written notice was elimination of uncertainty and possible controversy regarding the future status of a teacher and a school. The General Assembly did not intend to cast upon a teacher the burden of proving by ordinary methods that notice had been given. Upon the other hand, the District was afforded the same accommodation. But, while conduct amounting to waiver should be carefully inspected and all evidence bearing upon the subject ought to be impartially scrutinized, there is nothing to prevent a competent person from agreeing to forego designated rights; and this is true whether such rights are conferred by law or by contract. See Bowers on The Law of Waiver, p. 19; Corpus Juris, v. 67, pages 290-291. A definition of "waiver" found in the Corpus Juris citation is ". . . the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefits; or such conduct as warrants an inference of the relinquishment of such right, or the intentional doing of an act inconsistent with claiming it. Thus, 'waiver' occurs where one...