Stearns v. Ohio Savings Assn. , 15 Ohio App. 3d 18 ( 1984 )

I respectfully dissent.

The syllabus of Henkel v. Educational Research Council (1976),45 Ohio St.2d 249 [74 O.O.2d 415], states:

"In the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provides an annual rate of compensation, but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at will by either party."

The court, in the body of the opinion, also cited with approval 2 Restatement of the Law 2d, Agency (1958) 339-340, Section 442, Comment b, which is quoted by this court in the majority opinion. That comment states that if the employee has given up a position of some value to enter the employment such fact may be considered to show that the setting of a salary for a time unit indicates an employment agreement for that period of time. The facts set forth by appellant in the instant case, however, preclude such a finding. Appellant stated in his deposition that no one told him or led him to believe that he was to be employed for a stated period of time and further it was not until after he was discharged that someone told him since he had been hired at a yearly salary he had in fact been hired for one year. I do not construe Henkel so broadly as to require a trial for breach of contract simply because appellant was fired less than a year after he was hired and he was hired away from another company with his rate of pay set as an annual salary.

Appellant has also failed to adequately allege non-privileged publication of defamatory statements. Appellant was unable to name any person outside the qualified privilege to whom the alleged defamatory statements were made. Further, the mere allegation that the statements were made maliciously to persons within the qualified privilege is insufficient to raise a question of fact.

I would affirm the grant of summary judgment as to both causes of action.