dissenting:
I respectfully dissent.- The majority hold. that Mrs. Nordstrom was unlawfully discharged by the School Board of School District No. 8. In thus holding ■ the majority have decreed, in effect, that in the absence of any mitigation of damages Mrs. Nordstrom is now entitled to the tidy sum of- approximately $35,000, which represents about 4% years back pay, as well as winning reinstatement to her former position as a 3rd grade teacher in the elementary schools of El Paso County. I dissent from this disposition of the case and would therefore affirm the judgment of the trial court.
In my view of the matter the record simply does not justify the several conclusions reached by the majority. In short, the majority hold that there is no evidence in the record that the School District had-- officially promulgated any rule or regulation concerning the use of corporal punishment by teachers, and furthermore that even if there were evidence of such a rule, there is still no evidence that Mrs. Nordstrom violated the rule. I disagree with both of these conclusions and it seems to me that the majority are merely substituting their judgment for that of the School Board.
I concede that the record does not contain any certified-copy of the minutes of the School Board showing the formal adoption by the School Board of a resolution *405concerning the use of corporal punishment by teachers on unruly pupils. But that is ■ not the only manner in which a rule or regulation of a School Board may be shown. In the instant case, the secretary of the School Board testified, without objection, that the board had adopted certain rules and regulations which were in printed form and which had been given every teacher in the system. Then, from a document which was described by the witness as being the “Rules and Regulations for School District No. 8 Personnel,” dated April 1, 1961, the secretary of the School Board proceeded to read into the record, again without objection, the particular rule concerning the use of corporal punishment. I feel that most certainly this is at least a prima facie showing that the School .District did have a rule on the use of corporal punishment.
I also disagree with the conclusion, that there is no evidence that Mrs. Nordstrom ever violated the rule regarding the use of corporal punishment. The rule, incidentally, required that corporal punishment be inflicted only after a conference with the principal and with the principal himself thereafter either administering the corporal punishment, or witnessing the administration thereof. . .
Corporal punishment is defined in Black’s Law Dictionary, the deluxe Fourth Edition, as the infliction of “any kind of punishment on the body.” Is there evidence in the record that Mrs. Nordstrom inflicted any kind of bodily punishment on her pupils? A bit of background material will perhaps set in context the evidence bearing on this particular point.
Mrs. Nordstrom admitted that she had a very difficult time maintaining discipline in her 3rd grade class. According to her, it seemed that most of the school’s disciplinary problems were concentrated in her classroom. In any event, to hear her tell it, these eight year old youngsters were running wild in her classroom.' It was in this general setting, then, thát she admitted that *406on occasion she most certainly had “shaken” a pupil and “set him down in his seat.”
The principal testified that he had received numerous complaints from parents that their children had been slapped by Mrs. Nordstrom. The parents of one child, claiming that their child had been slapped by Mrs. Nordstrom on several occasions, asked for and received a conference with the principal and Mrs. Nordstrom. Mrs. Nordstrom at this conference, and also in her testimony before the panel, very frankly admitted that she had slapped this particular child, a young girl, in the face.
I am of the view that. evidence of the type that I have just summarized, although not overwhelming in nature, nevertheless does support the conclusion of the School Board that Mrs. Nordstrom violated the rule regarding corporal punishment. We are not here concerned with the wisdom of the School Board’s decision to lay down rules and regulations restricting the use of corporal punishment. No doubt there are those who are of the view that the teacher in the classroom should be permitted the unrestricted use of corporal punishment. On the other side of the coin, School Districts in order to protect themselves from countless claims may well want to lay down rules and regulations regarding use thereof. In either event, such was a matter for the School Board.
The majority seem to draw some distinction between “manhandling” and “slapping.” Both constitute a “laying on” of the hands, and the fact that the superintendent charged manhandling and proved a s’apping is not a fatal variance as far as I’m concerned.
Also, the majority appear to attach some significance to the fact that the superintendent charged several incidents of physical abuse and only proved one. To me the important issue is not how many slappings were established, but whether any were shown. And Mrs. *407Nordstrom freely admitted that she struck an eight year old girl in the face.
Under the circumstances, then, I would not disturb the action taken by the School Board and would affirm the judgment of the trial court upholding the School Board.