Johnson v. Putnam

• Decision Date: 13 February 1884
• Docket Number: 7921
• Citation: 95 Ind. 57
• Parties: Johnson et al. v. Putnam
• Court: Indiana Supreme Court

95 Ind. 57

Johnson et al. v. Putnam

No. 7921

Supreme Court of Indiana

February 13, 1884

Petition for a Rehearing Overruled April 19, 1884.

From the Superior Court of Marion County.

J. C Denny, D. V. Burns, H. Burns and C. S. Denny, for appellants.

A. C Ayres, E. A. Brown, J. W. Gordon, R. N. Lamb and S. M Shepard, for appellee.

Franklin, C. Elliott, J., did not participate in the decision of this cause.

OPINION

Franklin, C.

This was an action of trespass, brought by the appellee against the appellants, for an assault and battery. The complaint is in two paragraphs. The first is the common law count of trespass for the assault and battery. The second sets out that the plaintiff, on the 26th day of June, 1877, entered into a written contract with George W. Julian and John O. Hopkins, a majority of the board of school trustees of the town of Irvington, to teach the public school of said town of Irvington for a term of nine months, beginning on the 3d day of September, 1877. A copy of the contract is set out as a part of this paragraph. That Sylvester Johnson, the third trustee, was notified of the meeting at which plaintiff was employed, but refused to attend the same; that said Julian and Hopkins delivered to her the keys of the school building at the time they employed her; that in pursuance of her said contract the plaintiff was about to enter upon the discharge of her duties as teacher of said public school on the 3d day of September, 1877, in said public school building, and was in the peaceable possession of the same under her said contract, when the said defendants, by force and arms, assaulted her, and then and there, with great force and violence, seized and laid hold of her, and dragged her from said school-room in said house, and pushed her through the halls and down the stairs of said building, and pushed her with great force from said house; and also, then and there, shook and pulled about the said plaintiff, and then and there bruised her by pushing her against the walls of the said building, and then and there, by violently unloosing her hand from a staple in said wall, tore the skin from the index finger thereof, to her damage, etc.

To which complaint the appellants jointly answered, first, a denial; second, that they, as the school trustees of the town of Irvington, had the possession of the school-house thereof, and that the plaintiff, wrongfully and by force and arms, broke into and took possession of the said public school-house; that they notified plaintiff that she was wrongfully in possession of said school-house, and requested her to vacate the same, and deliver the possession thereof to them as such trustees; that she refused to do so, and thereupon they took hold of her, and ejected her from said school-house, using no more force than was necessary for that purpose; that this was the grievance complained of, and none other; and concluded with a denial of all the allegations of the complaint not herein specifically admitted.

The third paragraph of the answer is to the second paragraph of the complaint, and is similar in some respects to the second, but contains the further allegations that, at the time the plaintiff wrongfully and forcibly took possession of the school-house, she claimed the right to the possession thereof, under and by virtue of the contract set out and referred to in her said second paragraph of complaint; that said contract gave her no right to the possession of the said school-house for the reasons following:

1st. That George W. Julian was not a legal school trustee of said town, and had no right to enter into said contract, of which plaintiff had notice.

2d. That these defendants, composing the board of school trustees of said town, had, before the happening of the pretended grievances complained of, to wit, on the 14th day of August, 1877, revoked and annulled said contract, due notice of which was at the time given to the plaintiff.

3d. The contract in nowise related to the possession of the school-house, but only to the services of the plaintiff as teacher.

4th. That at the time the contract was executed, the plaintiff was not licensed to teach in the public schools.

That on the morning and before the happening of the grievances complained of, they notified the plaintiff that the contract had been revoked. This paragraph then concludes as in the second.

The defendants Johnson and Shank jointly answered in three paragraphs, similar to the three paragraphs in the joint answer of all the defendants, to which answers the plaintiff severally and separately demurred to the second and third paragraphs of each.

The demurrers were sustained to the third paragraph of each, and overruled as to the second paragraph of each; exceptions were taken. Replies in denial to second paragraph.

Trial by jury, and a special verdict returned as follows:

"We, the jury, having been required to find a special verdict in the said cause, do find the facts to be as follows: 1st. That the town of Irvington, in the county of Marion and State of Indiana, is an incorporated town, under and by virtue of the laws of the State of Indiana; that on the 3d day of June, 1875, George W. Julian was, by the board of trustees of the said town of Irvington, appointed one of the trustees of the schools in and for said town for the period of three years; that said Julian, within a few days after that time (records do not show the date, except in the month of June), took the oath of office as such trustee, and entered upon the discharge of the duties of his office; that at the time one Oliver M. Wilson and S. M. Houston were his cotrustees of schools for the said town; that the said Julian, Wilson and Houston organized said school board, and elected officers for the same as follows, to wit: George W. Julian, president, O. M. Wilson, secretary, and S. M. Houston, treasurer; that said persons were and acted as such trustees of schools for said town until the 9th day of June, 1876, when the term of S. M. Houston expired, and Professor John O. Hopkins was appointed by the said civil board of trustees of said town of Irvington for the term of three years from said last mentioned date; that immediately thereafter the said Hopkins accepted said appointment, and took the oath of office as such trustee, and entered upon the discharge of the duties of his office as such trustee; that on the 13th day of June, 1876, the said trustees, Julian, Wilson and Hopkins, organized themselves as such board of trustees of schools for said town of Irvington, by electing said Julian president, Wilson as secretary, and said Hopkins as treasurer thereof; that as such treasurer the said Hopkins filed with the auditor of the county of Marion and State of Indiana, with two good freehold securities in the sum of three thousand dollars ($ 3,000), his official bond as such treasurer; that the same was approved by the said auditor; that said Julian, Wilson and Hopkins continued to act and be recognized as such school trustees during the remainder of the year 1876, and up to the 1st Monday of June, 1877, when the term of office of said Wilson expired; that during the school year of 1876 the said trustees, last above named, had employed the plaintiff in this action as a teacher in the public school of said town; that the term of that school expired in June, 1877; that on the 4th day of June, 1877, the civil board of trustees of said town of Irvington appointed the defendant Sylvester Johnson one of the school trustees of the said town of Irvington, in the place of O. M. Wilson, whose term then expired; that on the 16th day of June, 1877, the civil board of trustees of said town of Irvington passed a resolution as follows, viz.:

"'June 16th, 1877, the board met at the office of J. H. Tilford, and the following action was had: The following resolution was presented and adopted: Whereas Sylvester Johnson and George W. Julian have failed to give bond and properly qualify under the law, as school trustees of the town of Irvington; and whereas the offices for which they were appointed are thereby vacant: Therefore,

"'Be it Resolved, That this board do now go into the election to fill said vacancies. Thereupon, there was an election, resulting in the election of Sylvester Johnson for the long term, and Dr. James A. Krumrine for the short term, as such school trustees of the town of Irvington. And the board adjourned to meet upon the call of the President.

Attest:

"'Levi Ritter, President.

"'C D. Mitchell, Clerk.'

"That no other or different order was ever made by said civil board of trustees of said town in reference to the vacation of the office of the said Julian; that said Julian did not at any time resign or abandon his said office; and that said town trustees never informed said Julian of said order officially, or in any other way, nor was he informed directly or indirectly, before or at the time of the passage of said resolution; nor did said Julian in any manner consent to the same, but on the contrary insisted that he was, and would remain, such legal trustee, until the first Monday of June, 1878; that said Krumrine, mentioned in said resolution, took the oath of office and assumed to act as a trustee of the school board from and after the said 16th day of June, 1877; that said Hopkins refused to be recognized as a member of said school board last elected as aforesaid; but, on the contrary, said Hopkins recognized and acted with said Julian as his co-trustee, so long as he, the said Hopkins, remained a member of the said school board.

"That on the 18th day of June, 1877, said Johnson and Krumrine tendered their joint bond to the auditor of Marion county the said Krumrine purported to be president, and said...