Tinkham v. Kole

• Decision Date: 15 August 1961
• Docket Number: No. 50268,50268
• Citation: 110 N.W.2d 258,252 Iowa 1303
• Parties: Michael TINKHAM, a Minor, by Donald Tinkham, his Next Friend and Father, Appellant, v. Marius L. KOLE, Appellee.
• Court: Iowa Supreme Court

Page 258

110 N.W.2d 258

252 Iowa 1303

Michael TINKHAM, a Minor, by Donald Tinkham, his Next Friend and Father, Appellant, v. Marius L. KOLE, Appellee.

No. 50268.

Supreme Court of Iowa.

Aug. 15, 1961.

Hansen, Wheatcraft & Galvin, Des Moines, for appellant.

Smedal & Maurer, Ames, for appellee.

GARFIELD, Chief Justice.

This is a law action in two counts by Michael Tinkham, a minor, through his father-next friend, to recover for personal injury resulting from corporal punishment by defendant Marius L. Kole, a school teacher. For convenience we refer to the boy as plaintiff. Plaintiff's first count alleges negligence, the second assault and battery. At the close of plaintiff's evidence, the trial court directed a verdict for defendant on each count. Plaintiff's appeal from the judgment thereon assigns error in the ruling as to each count.

The vital question presented is whether reasonable minds might conclude from the evidence that the punishment administered by defendant was unreasonable or immoderate under the circumstances. We must answer in the affirmative.

I. Of course it is our duty to view the evidence in the light most favorable to plaintiff.

On October 2, 1958, plaintiff was a student in the eighth grade of the Nevada, Iowa, public school. He was 13, weighed about 110 and was about 5 feet, 2 inches tall. Defendant taught the last period of the day, from 2:30 to 3:30. Jerry Geisler, in the seat in front of plaintiff, was a member of the junior high band to whom white gloves had been issued. When Jerry took his seat he laid his books at the side of his desk and placed his gloves on the books. Plaintiff put the gloves on his hands. There is testimony this was before the bell rang to signal start of the class.

Jerry testifies: 'I don't know whether Mr. Kole was in the room or not at that time, but he came in as soon as the bell rang. There wasn't too much order at that time. He (defendant) told us to take our books and most of us did who heard him with the noise. He said, 'Michael, get those gloves off.' Michael started taking them off, one at a time, finger by finger. He said, 'Michael, hurry and get those gloves off.' Mike just kept going like that and he said, 'Mike, you better hurry and get those gloves off.' About that time, Mike took them off real fast, because Mr. Kole was back by his (plaintiff's) desk. Then Mr. Kole started hitting him about the head. He hit him quite a few times. Michael did not say anything to Mr. Kole until he stopped hitting him. He said, 'Are you going to do that again?' Michael said, 'No.' Several times he said it and Mr. Kole started hitting him again for not too long a time. Then he went up in front of the class and gave us a speech. He told us our class was the mangiest, or ornery and wild. * * * He (plaintiff) was not standing up at any time during this and was almost on the floor with us. * * * He was also scared.'

Plaintiff's testimony is in part: 'We were fooling around like we always do at the first of the class and I picked up his (Jerry's) gloves and put them on. Mr. Kole asked for order and saw I had the gloves on. I started to take them off, finger by finger, and he told me to hurry and get them off. I think he rhought I laughed at him, but I didn't. He came back, I took the gloves off, and threw them on Jerry's books. He came back and started hitting me. Then stopped and said, 'Are you going to do that again?' and I said, 'No.' He started hitting me again and then stopped and went to the front of the room and gave a talk. He hit me back and forth on both sides of the face. I did not at any time talk back to him. * * * I could hear other voices in the room talking, as there is always talking at the first of the class. * * * At the time he struck me, I was sitting down and did not stand up at any time. I was scared.'

Part of plaintiff's cross-examination: 'Jerry came in before the bell rang and laid his gloves on his books. I took the gloves before the bell rang and put them on. I don't believe I waved them in the air. * * * When he told me to take the gloves off, I started taking them off. When I got them off, I put them on Jerry's books.'

At least two students besides plaintiff and Jerry testify defendant continued to strike plaintiff after he assured the teacher he would 'not do that again.' Several say they did not hear plaintiff say anything else to defendant. There is much testimony the class was not completely 'under way' at the time of the occurrence. Several of the 21 students in the class--all but one were witnesses--say they were talking or 'fooling around.' One witness testifies 'the noise sounded like it was coming from all over.' Another says 'some of the kids were talking, just all over.' Still another states 'almost everybody was talking.' One boy says he was engaged in horseplay at the time.

Two students testify they saw defendant was getting mad--one says he was getting madder--before he went back to plaintiff's desk to punish him.

In connection with the evidence plaintiff was slow in removing the gloves when ordered to do so, the undisputed testimony of two days may be considered. Jerry Geisler says, 'The gloves seemed to fit kind of tight. You had to pull them off finger by finger, but Mike did it kind of slow.' Another member of the band testifies, 'They were the type gloves that took a little too much time to get off and Mr. Kole told him twice, then came back and started hitting him. * * * I observed Mr. Kole hit Michael several times across the face with his hand.'

Defendant had not reprimanded plaintiff before this particular time and his parents had never received any reports of his being unruly at school or elsewhere.

When plaintiff returned to his farm home from school about 4 p. m. he told his parents of the incident in class. The father saw the boy still had red marks of a hand print on his face. Plaintiff complained of a funny sensation in his left ear and along the side of his face, later that the ear hurt him. During the night his nose bled freely for some time. Neither parent knew of any previous trouble with either of plaintiff's ears. The next day the boy still had the funny feeling in his ear. After school he met his mother at the office of Dr. Connor, the family physician.

The doctor found the boy's ear contained quite a little fresh blood. Some of the fluid the doctor used to clean the ear went down into his throat 'and that, of course, indicated the eardrum had been reptured.' Two or three days later Dr. Connor again examined the ear and again saw the rupture in the drum between the ear canal and middle ear. In September, 1959 (about a year after plaintiff was punished), Dr. Connor again examined him and found there was still a perforation in the eardrum about the size of lead in a pencil.

Dr. Connor, the only medical witness, testifies 'the probable chances of the opening closing after this length of time in my estimation are rather small.' Also, 'The effect of a perforation of the ear drum is that it reduces hearing. A person with a perforated eardrum is more susceptible to infection from a common cold or * * * swimming.'

II. At the close of plaintiff's evidence defendant moved for a directed verdict on four grounds. Two of them allege failure to prove freedom from contributory negligence. (Plaintiff was 13 at the time.) A third ground asserts, in effect, the punishment was proper under the circumstances. The remaining ground states it would be the court's duty to set aside a verdict for plaintiff.

The trial court then announced, 'This court has about concluded this is not a case which should be submitted to a jury. That we should stop this foolishness right here and now. This teacher had the right to discipline the student and to use such force as was necessary to do so.'

In explaining its ruling to the jury the court expressed the opinion 'Plaintiff must show the punishment was so cruel and unusual as to be beyond reason. I don't propose to let this case go any further. I think it is time * * * these kids must be taught some means of discipline. * * * For a period of time we sort of said don't spank the little dears, you might spoil their ego. Even parents weren't supposed to do anything to their kids because you would spoil their personality. * * *

'We first must determine whether the punishment was reasonable regardless of the consequences. * * * I don't believe it was unreasonable, any more than it would be for a parent to do something of this kind if his child disobeyed him or didn't do as he was told. If we had a situation where parents chain their kids to a bed and leave them there for days because they run off; that is unusual, unreasonable punishment. Where a father burned his kid's fingers with a cigarette because he was getting things off the table; that would be unreasonable and cruel punishment. But it was the natural thing for this teacher to do where this boy had been causing trouble, and his attitude toward the teacher, disturbing the room, to slap him back and forth on the face.'

III. There is no substantial dispute in the law that controls this appeal. It is sufficiently stated in the annotation to Suits v. Glover, 260 Ala. 499, 71 So.2d 49, 43 A.L.R.2d 465, commencing at 469, from which we quote: '* * * a teacher is immune from liability for physical punishment, reasonable in degree, administered to a pupil. * * *

'But a teacher's right to use physical punishment is a limited one. His immunity from liability in damages requires that the evidence show that the punishment administered was reasonable, and such a showing requires consideration of the nature of the punishment itself, the nature of the pupil's misconduct which gave rise to the punishment, the age and physical condition of the pupil, and the teacher's motive in inflicting the punishment. If consideration of all of these factors indicates that the teacher violated none of the standards implicit in each of...