Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1873-09-25
Morrow VS. w God.

ton was heard before Judge Mills
on Monday and Tuesday of last week,
and attracted greater intrest than
any other trial during the session OF
the Circuit Court. The case was
ably argued by Messrs Hazelton
aud Thomas for the plaintiff and
Messrs Barber and Clementson for
the defendant, the jury returning a
verdict of $3.50 against the defendant,
Wood. As a matter of general inter-
est we copy below Judge Mills
charge to the jury, wherein is given
from the testimony adduced a iuIl
history of the case, also the rulings of
the court:
CHARGE TO JURY.
This action is brought to recover damages
for an alleged malicious prosecution institute
ed by the defendant against the plaintiff.
Though the jury is not TO regard my state.
ment OF TIE facts as governing their conclu-
sion, viii present as | understand il a gem
eral outline Of the evidence, that the law APP
phcable thereto may the more readily be un-
deIstood.
On or about the 18th of November, 1872,
the plaintiff, qualified teacher under writ
ten contract with the Board, began teaching
the District School in District No. 4, IN the
town ofWoodman. The defendant, aG inhab-
liant OF that school district sent his son. George
boy between IL and II years OF age, 20 that
school. His father wished him to study
arithmetic particularly, with reading and
writing, to perfect him in these branches.
The plaintiff wished him also to study Geo.
graphy. There being no mental or physical
inability on the part OF the pupil TO pursue
the studies required by the teac her. the de.
PENDANT as well as the plaintiff claimed the
right to control him in the studies he should
pun sue. The father told his son, George, on
the Friday after the commencement of the
school, not to take his Geography from his
desk, but apply himself to Arithmetic. When
the teacher ordered him to take his Geogra-
ply out Of his desk and study his lesson, the
boy promptly refused, saying his father had
foI hidden him TO do so. The teacher said his
father was not the teacher in that school, am
the boy stoutly obeying his command, she us
ed physical force TO secure Obedience She
pulled Georges hair, how severely, the Jury
must determine. She caDght him by his col
lar and lerked him TO and fro till two buttons
were torn from his shirt. The pupil remain
ing obstinate and holding on to his seat, the
teacher left hun, telling him the matter should
be settled next Monday.
The defendant went 70 Boscobel and made
comploInt against the plaintiff tor assault aud
battery OF his sons warrant was issued by
Justice Shearer. aud on the 9th of November
1872, the plaintiff was arrested by Constable
Tay Tor aud held in custody by him in the
manner shown TO the jury until Saturday,;
Justice Parker of Woodman to whom tie case
had been removed Oy change OF venue dis
missed the prosecution, and ordered the PLAIN
tiff 10 be Sc: al liberty. The defendant wish
ed an adjournment, ana the prosecutor not Of
lerIng eny evidence against the plaintiff, the
justice Oh motion of The plaintiffs counsel
the prosecution.
Neither patty denies in this case that an
assault and battery was committed by the
plaintiff on the person of the defendants son,
George. The first question for the jury to
decide is, was this assault under the facts and
circumstances proven jusipsble or not?
Whether the School Board oy resolution
could have prohibited resort TO corporal pun
in School District No. 4 or not. il Is
not necessary TO determine The Board
made no regulation on the subject. The au.
thority of the teacher there is governed by
the common law.
When a parent sends his child to a District
School he surrenders to the teacher such an-
thority over his child as is necessary 10 the
proper government of the school. the classif-
cation and instruction of the pupils, inclnd-
ing what studies each scholar shall pursue -
these studies being such as are required or al
lowed by the statute, A prudent teacher
will always pay proper respect TO the wishes
of fha -huf ha
irreconcilable, the views of the parent in this
Unjust yield to those of The teach
er. The parent by the very act OF sending
his child to the school has impliediY UNDER
taken to submit that question 10 The judgment
of the teacher.
It is true that If teacher should require Of
a scholar the study OF lessons evidently be-
yond his capacity, or impo,e on him tasks be-
y ond his ability, and then fog him for not
mastering an impossibility, he would render
himself liable 10 a criminal prosecution, even
if the parent had consented, or even required
the teacher to pursue such an inhuman course.
But that is not the present case, The de-
PENDANT forbid his son to study Geography,
because he supposed that branch to be less
beneficial to him, than If he applied all his
time, Except that devoted to reading, writ
ing and spelling,) to cipherlng at his arthme
tic. 1t IS not pretended there was ANYTHING
UNI easonable in what the teacher reQu red un-
less 1t arose from the contrary command of
the father.
1t Is true as just said, that the father forbid
his son TO obey his teacher IN reference TO the
study of Geography, but such command did not
annul or abridge the righ' OF the teacher to
control that matter. Under the CT cumstanc.
es, as proven, she had a right 10 require the
scholars obedience, and if his father chose
afterward to punish has boy for obedience to
the lawful command of the teacher, the wrong
would be his, not hers. The parent had tao
itly engaged 10 submit this decIsIon to her.
and he should have submitted to that deci-
SION, or sought some other place TO have his
son instructed in his favorite science. If the
teacher is incompetent TO prescribe tine schol-
ars' studies, there Is just ground tor dismissal.
But incompetency III the teacher Is not pre-
tended in the present case.
And under the law as il exists in this state
teacher standing IN the place OF a parent,
may Infect reasonable corporal punishment
on a scholar 10 enforce Of edIence 10 lawful
command. Wheeler the punishment ihhc,ed
in t.lis case was reasonable aud Commensurate
with the boys cont umacy, Is a questi Ii Tor
the jury.
Ii It was, the assault and battery committed
by the plaintiff was jaslhaOle, and then there
But il you believe the punishment inflicted by
the teacher was Unreasonable, and out Of pro-
portion 10 the boy 'sfoffencs, you need not pro-
coed further, blt wi fad verdict Tor the
defendant.
but even if you should believe the plaintiff
justihdble IN the punish aent she inflicted up
on the defendants son, she viii not be enll-
tied 70 recover unless she shows among other
things, that the defendant had no probable
cause for having her arrested Tor the alleged
battery. Ii the defendant had been INTO. med
by credib e persons alter due inquiry that the
teacher had cruelty and ohtrageousIy logged
his son, IN manner bearing no proportion II
the boys offence, If he so believed af ter due
inquiry he would be justidable IN SUNG out a
criminal warrant, even though It should now
appear to you that the chastlsement was le $
severe than the boy deserved. But an utter
want of all probable cause on when reason
abe man, or a man OF ordinary prudenc
would act, would justify jury IN inlerring
malice.
The question may be asked, suppose that
under the advice Of Mr.. Shearer or other
counsel learned in the law the defendant hon.
estly believed the teacher had no right to re-