DISSENTING OPINION. I see no legal grounds for reversing the judgment of the Marion Superior Court. Its decision was supported by sufficient evidence and was not contrary to law. The relatrix was justified in understanding that the first communication of the school board to relatrix was intended as an arbitrary dismissal of relatrix; and it is clear that relatrix's reply was intended merely to avoid the embarrassment of having a public announcement that she had been "dropped." Her letter did not indicate that she was willing to resign rather than to submit to a lawful proceeding for cancellation of her contract. But it did clearly indicate that if it were necessary for her to choose between a public announcement that she had been "dropped" and one that she had resigned, she preferred that the public announcement state that she had resigned. All of her subsequent conduct was consistent with her belief that the school board had arbitrarily refused to permit her to continue her teaching. The fact that she temporarily refrained from challenging the unlawful action of the school board and assumed that she would not return to her teaching service, and evidenced this state of mind by severing her relations with the Teachers' Retirement Fund is not convincing evidence that she had resigned her teaching position. The trial court reasonably could have concluded that her mental attitude was that she preferred to submit to the unlawful action of the board rather than to engage in a public controversy. That is a far different mental state than intending to resign rather than submit to a formal hearing on the question of cancellation. She did not lose any rights against the Board of School Commissioners by temporarily refraining from insisting upon these rights unless the time element is material; and there can be no serious contention that relatrix had lost any of her rights by reason of delay in enforcing them. *Page 264
In view of the evidence which was before the trial court I think that his conclusion that the relatrix did not voluntarily cancel her contract is more reasonable than the conclusion reached by the majority of this court.