Allen v. Melton

• Citation: 99 S.W.2d 219
• Parties: ALLEN et al. v. MELTON.
• Decision Date: 14 March 1936
• Court: Supreme Court of Tennessee

99 S.W.2d 219

ALLEN et al. v. MELTON.

Court of Appeals of Tennessee, Middle Section.

March 14, 1936.

Certiorari Denied by Supreme Court December 12, 1936.

Appeal in error from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by Lillian Melton, by next friend, against Katherine Allen and another. Judgment for plaintiff, and defendants appeal in error.

Reversed and cause remanded.

Jack Keefe, of Nashville, for Katherine Allen.

O. W. Hughes, of Nashville, for J. D. Lawrence.

C. H. Rutherford, of Nashville, for Lillian Melton.

FAW, Presiding Judge.

In the circuit court, Lillian Melton, a minor, suing by her father, A. E. Melton, as next friend, obtained the verdict of a jury and judgment thereon for $1,500, as damages, against Miss Katherine Allen and J. D. Lawrence, defendants below, and the defendants have brought the case to this court, by separate appeals in error, seeking a review and reversal of said judgment.

The parties will be designated herein as plaintiff and defendants, respectively, as they appeared on the record below.

Plaintiff's declaration as originally filed contained but one count, as follows:

"Plaintiff, Lillian Melton, by next friend, A. E. Melton, sues the defendants, Katherine Allen and J. D. Lawrence, for Fifteen Thousand ($15,000.00) Dollars damages, and for cause of action states:

"Plaintiff, Lillian Melton, is a minor seventeen (17) years of age, and brings this suit against defendants by her father, A. E. Melton, as next friend, and would show as follows:

"Plaintiff resides in Nashville, Tennessee, and is a student in the Hume-Fogg High School, one of the City schools of the City of Nashville, Tennessee, and on or about February 10, 1933, while plaintiff was attending school as a student at said Hume-Fogg High School, located at the corner of Eighth Avenue and Broadway, Nashville, Tennessee, and during certain exercises, which were had by the management of said school, and while plaintiff was standing as she was commanded to do in line of students in one of the corridors of the building preparatory to entering the auditorium along with other lines of students, many students being crowded together in said lines, and while in this position, the defendant Katherine Allen, committed an assault and battery upon her, forcibly seizing her, and jerking her out of the line of other students, and handing her over to the defendant, J. D. Lawrence, who carried her into a basement room for the avowed purpose of taking her finger prints. Said defendant Lawrence seized and held plaintiff by the hand, and placed her to undergo a certain process in which he stated to her that he was taking her finger prints together with two other girls, whose finger prints said defendant Lawrence said he was taking at the same time, or on the same occasion.

"Plaintiff alleges that the defendant, Katherine Allen, and J. D. Lawrence, conspired together in the commission of said unlawful and outrageous assault and battery upon plaintiff, and agreed upon the time and place, and committed said outrage upon plaintiff in conjunction with each other as follows:

"The defendant, Katherine Allen, forcibly jerked said plaintiff out of the line of students, and handed her over to the defendant, J. D. Lawrence, who was present actively aiding and abetting in the outrage, who thereupon took plaintiff by force and superior strength and authority, and forced her away from her studies and duties at said school into said lower room, where he forcibly and unlawfully committed another assault and battery upon her by forcibly and against her will taking her finger prints.

"Plaintiff avers that the defendant, Katherine Allen, claims to have lost a pocketbook containing a certain sum of money, and plaintiff alleges that it was in furtherance of her efforts to regain and recover her said property, which prompted her to seize plaintiff, and jerked her out of line, and turned her over to the defendant, J. D. Lawrence, who undertook to take her finger prints. Said plaintiff was entirely innocent of any connection with the loss of defendant Allen's property, and was wholly unoffending at the time of the outrage, which was perpetrated in a public place where many students, teachers, employees, and others had congregated, and plaintiff was thus held up to public scorn and ridicule, shame and mortification when she was wholly innocent of any offense. Plaintiff suffered great physical pain and mental anguish, was greatly wrought upon and excited, she was greatly frightened, and she alleges that her nervous system was injured, and that she has thereby lost much in the way of her former good reputation, and name, and fame.

"Wherefore, plaintiff sues the defendants for Fifteen Thousand ($15,000.00) Dollars damages, and demands a jury to try the case."

In the midst of the trial below, plaintiff, by leave of the court, amended her declaration by adding a second count thereto, which is, in its averments of matters of fact, substantially the same as the original declaration, with the addition of certain averments characterizing the assault and battery by Miss Allen as wanton and malicious, and elaborating the description of the alleged conspiracy and the alleged assault and battery by Lawrence and its consequences, as follows:

"the defendant, Katherine Allen, with the reckless and negligent disregard of the rights of plaintiff did wantonly and maliciously seize and jerk her out of the line of other students, and hand her over to the defendant, J. D. Lawrence, who further aggravated the assault and battery, and the humiliation of plaintiff by carrying her into a basement room for the avowed purpose of taking her finger prints, and upon reaching the room forced plaintiff to undergo the humiliating process of having her finger prints taken, together with one other girl whose finger prints were taken at the same time, and on the same occasion.

Plaintiff alleges that the defendant, Katherine Allen and J. D. Lawrence, conspired together in the commission of said unlawful and outrageous assault and battery upon the plaintiff, and agreed upon the time and place with reckless disregard to the rights of plaintiff, committed said outrage upon plaintiff in conjunction with each other, and in a wanton and malicious manner, which subjected plaintiff to the ridicule and scorn of her school-mates, whose gibes and jeers she had to face for the remainder of the year, or until June of the same year."

But it should be observed that said "second count" is a suit for punitive, or exemplary, damages alone. In the first paragraph thereof it is stated that "Plaintiff * * * sues * * * for another $15,000.00 as punitive damages," and in the last paragraph that "plaintiff sues the defendants for another $15,000.00 for punitive, or exemplary damages, because of the reckless, negligent, wanton and malicious disregard with which this assault and battery was committed."

The case was tried to a jury upon the issues made by a plea of not guilty on behalf of both defendants to plaintiff's declaration — the order allowing the aforesaid amendment directing that the defendants' plea as filed would "stand as to said amended declaration."

A motion for peremptory instructions on behalf of Miss Katherine Allen was made and overruled at the close of plaintiff's evidence in chief, and was renewed and again overruled at the close of all the evidence.

The jury found the issues in favor of the plaintiff and assessed her damages in the sum of $1,500, and thereupon the court rendered judgment for the plaintiff and against the defendants for $1,500 and all the costs of the cause.

A separate motion for a new trial on behalf of each of the defendants was made and overruled, and an appeal in the nature of a writ of error on behalf of each defendant was prayed for, granted, and perfected.

Each of the defendants has filed a separate assignment of errors in this court. Eighteen alleged errors are assigned by defendant Miss Allen, and ten by defendant Lawrence.

Before taking up the consideration of the assignments of error, a general statement of the circumstances out of which this litigation arose will be made.

On February 10, 1933, the plaintiff, Lillian Melton, then seventeen years of age, was a member of the senior class at Hume-Fogg High School in the city of Nashville. Defendant Miss Katherine Allen was at that time, and had been for a period of sixteen years theretofore, a teacher in the Hume-Fogg High School.

Defendant Lawrence was a Sergeant in the United States Army detailed as drill master for a "battalion" of students at the Hume-Fogg High School. Plaintiff's desk was in the "session room" over which Miss Allen presided. About forty-five or fifty other "seniors" from sixteen to eighteen years of age, both boys and girls, had their desks in Miss Allen's session room. There were eighteen hundred pupils attending Hume-Fogg High School.

Two or three days prior to February 10, 1933, Miss Allen left her pocketbook, containing $96.85 in money, in a restroom, used by female students and teachers, near her session room. About thirty minutes later she discovered that she did not have her pocketbook, and it was found, apparently secreted, in or near the restroom, but the money had been removed and was never found, although the identity of the person who took the money was discovered sometime after the events involved in this case.

Miss Allen reported her loss to Mr. Srygley, superintendent of city schools of Nashville, and to Mr. Kirkpatrick, principal of Hume-Fogg High School, and a notice concerning it was posted on a bulletin board in the school building. At the instance of Mr. Srygley, city detectives promptly visited the building, but the character or extent of their investigations is not disclosed by the record, further than that they seem to have been fruitless.

Some of the teachers in the building, having the impression that defendant Lawrence "had...