LaFrentz v. Gallagher
| Decision Date | 16 December 1969 |
| Docket Number | No. 9679,9679 |
| Citation | 105 Ariz. 255,462 P.2d 804 |
| Parties | Joseph LaFRENTZ, by his Guardian ad Litem, Robert LaFrentz, Appellant, v. Frank GALLAGHER, Gerald Zehr, Washington School District #6, Donald Ott, Thomas Graves, A. W. Prenovost, Jr., Leonard Corburn, and C. Fred Hoenes, Jr., Appellees. |
| Court | Arizona Supreme Court |
Hughes, Hughes & Conlan, by John C. Hughes, Phoenix, for appellant.
Ivan Robinette, Phoenix, for appellees Frank Gallagher & Gerald Zehr.
Snell & Wilmer, by Gary H. Fry, Phoenix, for appellees Washington School District #6, Donald Ott, Thomas Graves, A. W. Prenovost, Jr., Leonard Corburn, and C. Fred Hoenes, Jr.
Joseph LaFrentz, by his Guardian ad Litem, Robert LaFrentz, hereinafter referred to as plaintiff, sued Frank Gallagher, Gerald Zehr, Washington School District #6, Donald Ott, Thomas Graves, A. W. Prenovost, Jr., Leonard Corburn, and C. Fred Hoenes, Jr., the latter individuals being members of the School Board, for assault and battery alleged to have been committed by defendant Gallagher on February 25, 1964. The court dismissed the case as to the individual members of the School Board prior to any testimony being given, and also granted a motion to dismiss as to defendant Gerald Zehr, the principal of the school.
The case was tried by the court with a jury as to defendants Frank Gallagher and the School District, resulting in a verdict in favor of defendants.
Plaintiff at the time of the trial was twelve years old and in the seventh grade in the Desert View School, which is one of the schools in the Washington School District #6. Plaintiff was about five feet tall, and weighed approximately eighty pounds. He was attending a physical-education class at the time of the incident. Frank Gallagher, a teacher in the school, was coach in charge of the class. The students were playing softball, and Gallagher was umpiring the game.
According to the testimony of the plaintiff, he was at bat and had hit a ground ball, and the call at first base was close, but Gallagher called him out. He stated that while he was walking back, 'kicking the dust,' Gallagher came up to him, grabbed him by the throat and slammed him into the backstop, with the words:
'I don't want any more of your Little League lip, punk!'
This testimony was corroborated at least in part by a fellow student, Tom Raudebaugh, who stated:
'MR. GALLAGHER came up and said he was sick and tired of his Little League lip and grabbed him by the neck and pushed him up against the backstop.'
Plaintiff claimed both actual and examplary damages. There was a definite conflict in the evidence as to the conduct of Gallagher. His testimony was to the effect that plaintiff was at bat, and had hit the ball on the ground--that a fielder picked it up and threw it to first base, and he (Gallagher) had called him out. The plaintiff then stated:
Gallagher then testified that as he (Gallagher) came from the thirdbase line toward the backstop he pushed plaintiff on the chest region, the pectoral region, and told him that was not the type of language to use on the athletic field. Gallagher testified that he did not grab plaintiff by the throat, that he did not choke him, nor intend to strike the backstop. He stated:
attention. Just sending him off the field, some may not have known what he was sent off for * * *
'So, at this particular situation, he was close to the backstop, and I walked up and pushed him and told him that I didn't think those were the correct words to use and I really felt this way, that is no--you let somebody say 'Hell' or 'damn' and pretty soon you have got thirty-five boys out there swearing, and it gets worse than that, and you are not doing your job as a teacher.
'And then after this, after I pushed him, his side was out, and he continued on playing until the end of the period.'
Gallagher's testimony was corroborated at least in part by Pat Morrison, girls' physical education teacher, who testified, when asked what she saw or observed:
'A. There was a dispute, about which I don't know, it was about 40 feet back. But Coach Gallagher said to me, 'Excuse me,' and he went to the center of the diamond and grabbed a boy closest to him. And I remember the LaFrentz boy was very close to the Coach, and he was yelling.
Plaintiff contends that the court erred in not permitting evidence of prior similar acts against other students. The trial court properly held that the prior acts were not admissible for the purpose of proving commission of the acts--that is, assault and battery. Indeed, plaintiff admits the correctness of this ruling in his reply brief at page one where he stated:
On the question of knowledge, the case had been dismissed as to the school principal, Gerald Zehr, for failure to state a claim against him. The court had also dismissed the case as against the individual members of the school board.
Plaintiff does not in his brief mention or discuss the question of whether the court erred in dismissing the action as to the defendant Zehr, or as to the defendants, the individual members of the school board; however, plaintiff does contend that the prior acts were admissible on the ground of knowledge, intent, and malice, and for the purpose of showing the right to punitive damages. It is clear that evidence of other acts would not be admissible for the purpose of showing knowledge, nor would they be admissible for the purpose of showing the liability of the school board, as knowledge is not required to make the school district responsible for such a tort liability. Ewald v. Pielet Scrap Iron and Metal Co., 310 Ill.App. 218, 33 N.E.2d 930. See also Lewis v. Southern Pacific Co., 102 Ariz. 108, 425 P.2d 840.
It is a well-established principle of law in an action against a school teacher for damages for battery that corporal punishment which is reasonable in degree administered by a teacher to a pupil as a disciplinary measure is 'privileged,' and does not give rise to a cause of action for damages against the teacher. The courts have held that the teacher is in loco parentis, so that the crucial question that arises is the reasonableness of the punishment. Restatement of the Law, 2d, Torts, Sec. 147(2), 150. There was a conflict in the evidence as to the degree of punishment. This question of reasonableness was submitted to the jury under proper instruction. The jury accepted Gallagher's version.
Plaintiff in his brief presents three grounds which he contends evidence of prior similar acts is admissible in an action for assault and battery. Gallagher admitted pushing plaintiff, so the question is whether the pushing was a...
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