Deskins v. Gose

• Decision Date: 30 April 1885
• Citation: 85 Mo. 485
• Parties: DESKINS, by Guardian, v. GOSE, Appellant.
• Court: Missouri Supreme Court

85 Mo. 485

DESKINS, by Guardian,

v.GOSE, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

R. A. Debolt for appellant.

(1) It is the duty of the school board to make all needful rules for the government of the pupils (R. S., sec. 7045); but if it fails to do so, the teacher has the right, and must, of necessity, make such rules. Danenhoffer v. State, 35 Am. Rep. 216, 219. (2) The rule of the teacher against profane swearing and fighting by pupils, either at school or on their way home, was reasonable and proper. Burdick v. Babcock, 31 Iowa 565; King v. Jefferson City School Board, 71 Mo. 628; Sewall v. Board of Education, 29 Ohio St. 89. (3) While pupils are in his charge he stands in loco parentis, and the law gives him the power and authority in proper cases, to inflict corporal punishment upon the refractory. State ex rel. Burfee v. Burtin, 30 Am. Rep. 706; Danenhoffer v. State, 35 Am. Rep. 216, 219; Dritt v. Snodgrass, 66 Mo. 297, 298; Cooper v. McJunkin, 4 Ind. 291; Commonwealth v. Randall, 70 Mass. 37; 1 Broom & Hadley's Commentaries, p. 381, note 168; State v. Mizner, 24 Am. Rep. 769, and note, also 771; Whar. on Crim. Law, sec. 1269. (4) The teacher has the right to punish a pupil on his return to school for an infraction of the rules committed on the way home after school has been dismissed for the day. Dritt v. Snodgrass, 66 Mo. 286.

E. M. Harber for respondent.

NORTON, J.

This suit was brought to recover damages for alleged injuries inflicted by defendant on plaintiff in whipping him with a switch. The answer of defendant sets up that he was a teacher of a public school; that plaintiff was one of the pupils of said school, and that for a violation by plaintiff of a rule of the school, in using profane language, quarreling and fighting with the other scholars of the school, he did, in order to preserve good order and discipline in the school and to promote its usefulness, chastise plaintiff with a switch, inflicting upon him reasonable and moderate punishment. Plaintiff obtained judgment for nine dollars, from which the defendant has appealed.

On the trial plaintiff offered evidence tending to show that the pnnishment inflicted was excessive; that plaintiff did not use profane language to, or quarrel or fight with, the other scholars. The defendant offered evidence tending to prove the facts set up in his answer, and the following agreed statement of facts was then read to the jury, viz.:

“That the defendant was at the time the employed teacher of the public school at which the plaintiff was a regular daily attendant on and during the day that the acts and conduct complained of occurred, and for which the defendant chastised him; that the profane language used, the quarreling and fighting was done, if at all, one-half or three-fourths of one mile from the school house, after the school had been adjourned for the day, and the scholars were on their way to their respective homes, and before they had reached them, and the punishment was inflicted the next day thereafter, when the plaintiff returned to the school; that the defendant, as teacher, had a standing rule against the use of profane language, quarreling or fighting among the scholars, either at the school house or on their way home, and often spoke of the rule in the presence of the school and the plaintiff; that plaintiff was, at the time of the chastisement, thirteen years of age, and that all this occurred in the county of Grundy, Mo.”

The court then instructed the jury that under the evidence and pleadings the jury must find for the plaintiff, and refused to give several instructions asked by the defendant, to the effect that plaintiff, while in attendance as a scholar, was under the control of defendant as teacher, and that defendant had a right to punish him for an infraction of the rule put in evidence in the agreed statement of facts, and that the verdict of the jury should be for defendant unless they believed that the punishment inflicted was unreasonable or excessive.

It is this action of the court which is complained of as error, and we...