Tollett v. Mashburn

• Decision Date: 26 April 1960
• Docket Number: Civ. A. No. 726.
• Citation: 183 F. Supp. 120
• Parties: Berthenia TOLLETT, joined by Kelsie Tollett, her husband, Plaintiffs, v. Austin MASHBURN and Lorene Hendricks (Hendrix), Defendants.
• Court: U.S. District Court — Western District of Arkansas

183 F. Supp. 120

Berthenia TOLLETT, joined by Kelsie Tollett, her husband, Plaintiffs, v. Austin MASHBURN and Lorene Hendricks (Hendrix), Defendants.

Civ. A. No. 726.

United States District Court W. D. Arkansas, Texarkana Division.

April 26, 1960.

George F. Edwardes, Texarkana, Ark., for plaintiffs.

Gordon B. Carlton, DeQueen, Ark., for defendants.

JOHN E. MILLER, Chief Judge.

The defendants, Austin Mashburn and Lorene Hendricks, in their answer filed January 28, 1960, to the amended and substituted complaint of the plaintiffs, Berthenia Tollett and her husband, Kelsie Tollett, alleged that the claims of plaintiffs are barred by the Statute of Limitations as set forth in Ark.Stat.Ann. § 37-201 (1947), and prayed that the amended and substituted complaint of the plaintiffs be dismissed.

In the consideration of the plea of the statute of limitations, it is necessary to set forth and consider the proceedings heretofore had in this case.

The plaintiffs are husband and wife, citizens of the State of Oklahoma and residents of Broken Bow, Oklahoma. The defendants are citizens of Arkansas and residents of DeQueen, Arkansas. The amount sought to be recovered by plaintiffs, exclusive of interest and costs, is in excess of $10,000.

On June 22, 1959, the plaintiffs filed their complaint. In the "First Cause of Action" the plaintiffs alleged that on November 27, 1957, the defendant, Austin Mashburn, was Chief of Police of the City of DeQueen, Arkansas, and as such was an officer of the law; that "the Defendant, Lorene Hendrix, did then and there without any warrant or writ make an unlawful physical assault and battery and attack upon and against the Plaintiff, Berthenia Tollett, then and there striking and hitting her upon her person; that at the said time and place the said Austin Mashburn struck and hit the Plaintiff, Berthenia Tollett, at the request of Lorene Hendrix, the Defendant herein, and that at the said time the said Berthenia Tollett was acting lawful and in a peaceful manner; that the said Lorene Hendrix and Austin Mashburn were acting together and as the result of said combination the said Lorene Hendrix was then and there aiding, encouraging, advising and causing the said Austin Mashburn to hit, strike and beat the Plaintiff, Berthenia Tollett; that in assuming to assist the said Austin Mashburn the said Lorene Hendrix was also apparently acting as some sort of officer, aid or assistant to Austin Mashburn; that such assault was an unlawful assault and resulted in severe personal injuries being inflicted upon the said Berthenia Tollett thereby proximately causing damages to be sustained by the said Berthenia Tollett and Kelsie Tollett, the Plaintiffs herein."

In paragraph numbered 3 of the "First Cause of Action" the plaintiff, Berthenia Tollett, alleged in detail the injuries which she claims to have received as a result of the assault and battery, and in numbered paragraph 4 of the "First Cause of Action" the plaintiff, Kelsie Tollett, alleged that he has been damaged by the loss of the services of his wife, and medical and hospital bills, and "that during long periods of time after said assault she was unable to perform her duties as a wife and that the Plaintiff, Kelsie Tollett, was thereby deprived of her services and consortium * * *".

In paragraph 5 of the "Second Cause of Action" the plaintiff, Berthenia Tollett, alleged that the defendant, Lorene Hendricks, "did speak, utter and publish of and concerning the Plaintiff, Berthenia Tollett, certain defamatory words to the said Austin Mashburn then and there verbally charging this Plaintiff with a criminal offense, and that the words so spoken, published and uttered concerning this Plaintiff constituted a slander and defamed this Plaintiff, and that said words caused and provoked the assault hereinabove alleged."

In numbered paragraph 6 of the "Second Cause of Action" the plaintiff, Berthenia Tollett, alleged that the statements of the defendant, Lorene Hendricks, to the defendant, Austin Mashburn, were maliciously made and charged that the plaintiff had violated the law.

In paragraph numbered 7 of the "Second Cause of Action" the plaintiffs alleged that they are entitled not only to actual damages but to recover punitive damages.

In July, 1959, both defendants filed their answers specifically denying the allegations in the complaint, and in addition to the denial of the allegations of the complaint the defendant Mashburn "demurred" to the "Second Cause of Action" set forth in the complaint on the ground that the plaintiffs had not alleged that he in any wise slandered either of the plaintiffs.

On the issues as made by the complaint and the separate answers of the defendants, there was a pre-trial conference on October 16, 1959, at which time the court treated the demurrer of the defendant, Austin Mashburn, to the alleged "Second Cause of Action" as a motion to dismiss and dismissed the "Second Cause of Action" as to the defendant, Austin Mashburn. It was further ordered that the case be set for trial at the November, 1959, Term.

Prior to the convening of the court in November, 1959, the defendants each filed a motion for permission to amend their answers, and on November 9, 1959, the court, by order, granted leave to the defendants to file amendments to their separate answers. In accordance with the order, each of the defendants filed amendments to their answers in which they alleged that the claims of plaintiffs against them were barred for the reason that the suit was not commenced within the period of limitations as set forth in Ark.Stat.Ann. § 37-201 (1947).

Upon the filing of the amendments to the answers, the plaintiffs asked leave to file an amendment to the "First Cause of Action" as alleged in their complaint. The court granted plaintiffs leave and, accordingly, they filed the amendment. The amendment to the complaint alleged:

"That the Plaintiffs hereby amend their alleged First Cause of Action as follows:

I.

"They further allege, commencing at the last sentence in Paragraph Numbered II, that at the time of the infliction of personal injury upon Berthenia Tollett, as alleged in the original Complaint, the said Plaintiff, Berthenia Tollett, had been engaged by Dr. J. S. Hendrix and specially requested by the said Dr. J. S. Hendrix to assist him in packing his office equipment at DeQueen, Arkansas, in the office then and there maintained by the said Dr. J. S. Hendrix, and that the said Berthenia Tollett was lawfully upon the said premises of the said Dr. J. S. Hendrix pursuant to said employment, and that she had a lawful right to be in and upon said premises performing and discharging her duties as such an employee of the said Dr. J. S. Hendrix and that the said Austin Mashburn, then and there being aided, encouraged, abetted and assisted by the Defendant, Lorene Hendrix, unlawfully interfered with Plaintiff's right to be in and upon said premises, and sought to interfere with her orderly performance and discharge of her duties; that the said Berthenia Tollett had a right to assist in the packing, loading and removal of the equipment of Dr. Hendrix, and that a violent physical attack upon this Plaintiff interfered with said right and said employment, and that this is an action on the case for damages proximately resulting therefrom.

II.

"That the Plaintiff, Kelsie Tollett, maintains this action for damages suffered in consequence of said wrongful injury inflicted upon his said wife."

Following the amendments to the answers of the defendants and the amendment of plaintiffs to the "First Cause of Action", the court, on November 17, 1959, entered an order dismissing the original complaint of the plaintiffs, and, upon consideration of the amendment to the complaint heretofore referred to as being filed on November 9, 1959, the court said:

"* * * and the Court after considering the said amendment to the complaint is of the opinion that the plaintiff, Berthenia Tollett, may have a cause of action against the defendants for interfering with her employment rights, and that the plaintiff, Kelsie Tollett, as the husband of the plaintiff, Berthenia Tollett, may have a valid claim against the defendants for medical expenses and for loss of consortium because of personal injuries, if any, received by the plaintiff, Berthenia Tollett, leave is granted to the plaintiffs to file within thirty days from this date a substituted complaint setting forth any claims which they may have against the defendants for interfering with the employment rights of the plaintiff, Berthenia Tollett, and for any consequential damages suffered by the plaintiff, Kelsie Tollett."

Upon motion of the plaintiffs, the court, by order, extended the time for the plaintiffs to file their amended and substituted complaint until January 16, 1960, on which date it was filed.

In the amended and substituted complaint, the plaintiffs alleged that the plaintiff, Berthenia Tollett, was employed to assist Dr. J. S. Hendricks in preparing and arranging his equipment incident to his removal of his practice from the City of DeQueen; that she had worked in such capacity a substantial portion of one day and had about three more days' employment in connection with said removal; that while so engaged, the defendants without any warrant, writ or other lawful authority entered upon the premises and that the said defendant, Austin Mashburn, "then and there being induced and prompted by Lorene Hendrix did make a violent physical assault and attack upon and against the said Plaintiff, Berthenia Tollett, then and there striking, hitting and laying his hands upon her person, and that at the said time and place the said Austin Mashburn struck and hit the Plaintiff, Berthenia Tollett, and that he, the said Austin Mashburn, had been called upon by the said Lorene Hendrix to aid and assist her, the said Lorene Hendrix, and the said Lorene Hendrix did then and there aid, encourage, counsel,...