Yolton v. Williams

168 N.W. 755, 41 S.D. 93, 1918 S.D. LEXIS 142

• Court: South Dakota Supreme Court
• Decided: September 3, 1918
• Docket: File No. 4162
• Status: Published

Opinions

WHITING, P. J.

Plaintiff, claiming 'that defendant® had wrongfully discharged her from her position as teacher of die school in the district of which they were the school board, 'brought this action to recover the amount of wages' which would have been due her if she had 'been allowed to teach the remainder of the school year for which she claimed to 'have contracted. The verdict and judgment were for plaintiff. From such judgment and an order denying a new trial defendants have appealed.

[1] Defendants contend that the contract under which plaintiff claims to recover was invalid, and further that, even though such contract had been valid, they were fully warranted in 'discharging plaintiff. Defendants argue to considerable length and cite numerous authorities as well as- statutory provisions in support of their contention that the contract was invalid1. We are, however, of the opinion that they have waived any right to question the validity of such contract 'because of their failure to except to the following instruction given by the trial court.

“The defendants do not deny that they contracted with the plaintiff to teach the 'Capa school; that plaintiff had a valid certificate authorizing her to teach in the ¡public schools of the ¡state.”

In discharging plaintiff, defendants served notice upon her of the resolution which had been passed by them, which resolution purported to set forth the grounds for the discharge setting forth that plaintiff—

“has violated 'her contract as a teacher, and has violated the rules of the school board and1 the directions of the school board and the laws of the ¡state of South Dakota, and is not fulfilling her ¡duties as a teacher, and is guilty of- flagrant neglect of duty imposed under ¡contract and required by ¡law ¡of public policy.”

[2, 3] The issue of fact as to whether plaintiff had so violated her ¡contract and failed to do her ¡duties as a teacher wasi fairly and clearly submitted to 'the jury by the instructions of the trial court, so that the question left for our determination' is. ¡whether there was evidence which, if believed iby the jury, would warrant it in finding ¡for plaintiff. It is perfectly clear from the evidence that -plaintiff was guilty of acts- unbecoming one in her position and of acts which, if unexplained, might fairly have warranted defendants in discharging her; but the real issue 'before the jury under ¡the evidence in this case was whether or not such unbecoming and improper ¡conduct was induced and brought about by improper ¡conduct of defendants. This was peculiarly a question for the jury, and, after a careful consideration ¡of ‘the evidence, we are satisfied that there was sufficient evidence to- warrant the jury in concluding that the plaintiff’s ¡objectionable conduct was induced by the failure of defendants to give her such support ¡as their position fairly required.

[4] It appears that the plaintiff, besides instituting this action, had appealed to the circuit ¡court from, the order ¡of discharge. When this action was -called for trial, plaintiff moved that this action and the appeal be consolidated. The court sustained such motion. The defendants, as one assignment of error, say that:

“The court erred in overruling the ¡defendants’ objection to the trial of the appealed -case, upon the grounds urged in said objection.”

• ' An examination of the printed record herein discloses: that/the defendant, in objecting to such 'consolidation, suggested 1» ground or reason'upon which-they based' such-objection. 'Without some reason -stated therefor the -court.-was' not bound to give any heed to 'such- obj ectio-n.

There are numerous assignments assigning, as error various rulings -o-f the trial -court in the .admission and- -rejection- of evidence. We 'have -considered- such- assignments in connection w-ith the whole record herein, and are -satisfied that none of such rulings1 disclose any'-prejudicial error, or present any -question deserving of further consideration.

The judgment and or-der .-appealed from- -are affirmed.