Wilkerson v. School Dist. No. 15, Glacier County

• Decision Date: 23 May 1985
• Docket Number: No. 85-35,85-35
• Citation: 42 St.Rep. 745,216 Mont. 203,700 P.2d 617
• Parties: , 25 Ed. Law Rep. 636 Pat WILKERSON, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 15, GLACIER COUNTY, Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 617

700 P.2d 617

216 Mont. 203, 25 Ed. Law Rep. 636

Pat WILKERSON, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 15, GLACIER COUNTY, Montana, Defendant and Respondent.

No. 85-35.

Supreme Court of Montana.

Submitted on Briefs March 28, 1985.

Decided May 23, 1985.

Hartelius & Ferguson; Cameron Ferguson, Great Falls, for plaintiff and appellant.

Werner, Nelson & Epstein; James C. Nelson, Glacier County Atty., Cut Bank, for defendant and respondent.

HUNT, Justice.

Pat Wilkerson appeals an order of the Glacier County District Court which granted the School District's motion for a judgment notwithstanding the verdict, after a jury had returned its verdict in favor of Wilkerson. Wilkerson sought to enforce a contract of employment with the School District. Three issues are presented for review: first, whether the oral conversation made prior to the parties' written contract had any effect on the terms of that contract; second, whether that oral conversation constituted a condition precedent; and third, if so, whether Wilkerson's failure to satisfy that condition precedent breached the contract.

We reverse and remand for reinstatement of the jury verdict.

On August 23, 1983, Pat Wilkerson, a 31-year-old divorced mother of three children, applied to the Glacier County School District 15, for a job as a full-time bus driver. On that date, she and members of the school board signed a written document entitled "Cut Bank Public Schools Bus Driver's Contract." At the time she applied for the job, she was working nights as a bartender in Cut Bank, Montana. That was a fact known to Ray Milhoan, the bus driver supervisor for the School District, and was a matter both he and Wilkerson discussed prior to entering into the contract of employment. Wilkerson says Milhoan agreed she could continue to tend bar until her first paycheck from the School District arrived. But Milhoan contends she agreed to quit the bartending job prior to accepting the job with the School District. That dispute is at the heart of the controversy.

Wilkerson testified without objection, that after she had passed both the driving test and physical examination for the position, Milhoan told her he was hiring her for the job "because I feel that God is guiding me to give it to you because I don't feel a Christian should be working in a bar."

Her first day of driving the school bus was August 29, 1983. On September 15, 1983, two conversations took place between Wilkerson and Milhoan, discussing the fact that she was still working as a bartender at night and driving the bus during the daytime.

When questioned by her own counsel, about those conversations, she stated:

"A. ... I was delivering the kids and was still on the outside of town and he called me on the radio and said, 'When you put the bus in the barn I want to see you in my office,' and I said, 'Yes, sir.' So I parked my bus and went in to see him and he said to me, 'You're still working in the bar,' and I said, 'Well, yes, I am.' He said, 'You've got a choice to make. You either want to tend bar or drive bus, but you can't do both.' And I said, 'Ray, you know that you already discussed that and agreed that I could work until after the 20th of September and until I had a bus check to live on.' He said, 'You've got a choice to make, and you make it now.' He said, 'I want your answer today.'

"Q. Then what happened? A. I said, 'I was going to quit.' He said, 'Do you mean you are not going to quit now?' and I said, 'No.' I said, 'I would have quit on my own after I was financially able to do so.' "Q. Referring to the time when you would have received a bus check? A. yes.

"Q. What happened then? A. He said, 'You either quit the bar or I'm going to have to fire you.' I said, 'On what grounds?' He said, 'Because you are a bartender.' I said, 'No, I won't make a decision on an ultimatum,' and he said, 'Well, I have no alternative but to fire you.'

"Q. Then what happened? A. I went home and then I came back in the afternoon and pulled my bus out of the barn at three o'clock in the afternoon, and he jumped on the bus and said, 'What's your answer?' I said, 'Ray, there's no answer.' Then he said, 'Then I have to fire you.' I said, 'All right, what's your reason for firing me?' He said, 'Because you're a bartender.' I said, "Effective when?' He said, 'Effective immediately.'

"Q. Why do you feel he fired you? A. My own personal feeling?

"Q. Yes, your own feeling. A. Because he is the minister of the church and the church takes a very strong stand against alcohol and tobacco and drugs, and the use and sale of them.

"Q. And you feel that was his reason because you were working as a bartender? A. Yes."

Wilkerson testified she told Milhoan that she wanted to drive a bus, that she did not want to work in a bar, and that as soon as she was financially able, she would quit the bartending job. She said there was no way she could afford to quit before September 20, 1983, because that is the only day during the month when the School District pays its employees.

Our review of the record suggests that the particular language exchanged between Wilkerson and Milhoan gave rise to this controversy. The foregoing discussion does not establish as a matter of law that Wilkerson refused to quit her bartending job. It is reasonable that the School District took the position that: "Do you mean you're not going to quit now?," to which she answered "No," meant she determined at that point that she was not going to quit at any time. But the use of the word "now" is equally susceptible of another interpretation. Wilkerson could have meant she was not going to quit now, right this minute; that she intended to keep both jobs for five more days, until September 20, just as she and Milhoan had previously agreed.

When questioned on cross-examination, she was asked whether she recalled answering opposing counsel's questions, put to her in a January 6, 1984 deposition. She indicated she did recall that situation. The exchange was as follows:

"Q. Miss Wilkerson, when you gave your deposition did I ask you this question?"

" 'When you were terminated did you tell him that you only needed to work until after the first check and that then you would quit bartending?'

"A. Yes.

"Q. Did you give the following answer?:

" 'I told him, "Ray, you agreed with me when you hired me that I could continue work, and that there was no way I could quit until after the 20th." That's when he made the ultimatum and said, "Well, Chris says you've got to answer now." ' A. Yes." [Chris Mattocks was Superintendent of the School District.]

During the trial, Wilkerson's counsel moved to admit the parties' written contract into evidence. Opposing counsel did not object to its admission, but only on the condition that the School District be allowed to preserve its position that the document was not a legal contract.

At the close of argument, the School District moved for a directed verdict. That motion was denied, and the matter was submitted to the jury. The jury returned a verdict for Wilkerson, awarding her monetary damages of $3,500.00 for the amount due her on the remainder of the 1983-1984 school bus driver contract, less amounts earned at other employments during that period. After hearing the verdict, the School District moved for a judgment notwithstanding the verdict, and the District Court granted it.

The foregoing language between Wilkerson and Milhoan is a typical example of potentially conflicting testimony particularly appropriate for jury resolution. If there is conflicting evidence in the record, the credibility and weight given to such conflicting evidence is the province of the jury and not of this Court. And if there is substantial evidence to support the finding of the jury, then the directed verdict should have been denied. Lackey v. Wilson (Mont.1983), 668 P.2d 1051, 1053, 40 St.Rep. 1439, 1441.

The first issue presented is whether the discussion between Wilkerson and Milhoan, which took place before the contract was entered into, should be seen to vary the terms of that contract. As a general rule, § 28-2-904, MCA, provides:

"Effect of written contract on oral agreements. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument."

Section 28-2-905(1)(b), MCA, allows for an exception, namely, when the validity of the agreement is the fact in dispute. The School District takes the position that the contract is invalid because there was no meeting of the minds. It asserts the parties intended all along that Wilkerson would have only one job--that of bus driver. Wilkerson, on the other hand, points out that she made it very clear to Milhoan that while she intended to quit the bartending job, she informed him that she could not afford to do so until September...