Allen v. Melton
Decision Date | 14 March 1936 |
Citation | 99 S.W.2d 219,20 Tenn.App. 387 |
Parties | ALLEN et al. v. MELTON. |
Court | Tennessee Court of Appeals |
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.
Defendant waived motion for peremptory instruction, made at close of plaintiff's evidence by thereafter putting on witnesses in his own behalf.
Jack Keefe, of Nashville, for Katherine Allen.
O. W Hughes, of Nashville, for J.D. Lawrence.
C. H Rutherford, of Nashville, for Lillian Melton.
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:
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:
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...
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