Peck v. Smith

| Conn. | Oct 15, 1874

Foster, J.

On examining this record, giving due consideration to the arguments of counsel upon the questions arising upon it, we readily come to the conclusion that the rulings and decision of the court below were correct, and that there should be no new trial.

The plaintiff was a pupil in the public school of the district where he resided, and the defendant was acting as one of the committee of the district. The objection to the admission of the evidence, offered to prove his electionto that office, was properly overruled. That what purported to be the record of the district was not duly certified, was insufficient to exclude it under the circumstances. In connection with the other evidence it was admissible, at least to explain the character in which the defendant acted—that he was not acting as a stranger, but colore officii.

From the facts detailed in the motion, the act of the defendant in removing the plaintiff from the school house is abundantly justified, and may properly be commended. The school for the day had not commenced. The defendant, being at the school-house, performing certain duties connected with the school, called the attention of the plaintiff to certain acts, not specially culpable in character, which he acknowledged he had committed. His bearing and manner were insolent and offensive, and the language in which he indulged was grossly profane. Such language, reprehensible at all times, should not have been allowed to pass with impunity from a school-boy of the older class, within the walls of a school-house, in the presence and hearing of younger pupils. After being told to leave, he so conducted that it was proper to remove him, no unnecessary force being used to attain that object.

The plaintiff seems to insist that this was an expulsion from the school, and denies that the defendant, under the provisions of the 84th section of our statute entitled “ An Act concerning Education,” possessed the power of expulsion, even if he was one of the committee, which is also denied.

We incline to agree with the plaintiff’s construction of this section of the statute, so far as the powers of the defendant, acting under it, are concerned. We see no advantage, however, accruing to the plaintiff, if he is right in that claim. The result necessarily would be, that not having been expelled from the school by any competent authority, he was still entitled to attend, and avail himself of its advantages, had he been so disposed. The teacher it seems was willing-to receive him, and had never been directed not to do so. The plaintiff never came to school again, but for that we do not think the defendant was responsible. The inquiry made of the defendant by Mr. Taylor, the next friend of the plaintiff, assumed that the plaintiff had been expelled from the school, and the answer of the defendant, giving it all the effect which the plaintiff claims for it, fails to amount to a trespass, or to place any legal obstacle in the way of the plaintiff’s return to school. Nor does the application of Mr. Taylqr to the other gentlemen, claimed to belong to the committee of the district, or his application to the board of education of the town, affect the questions here involved. If the plaintiff had not been expelled from the school, and his counsel insist that he had not, the legal steps to that end not having been taken, the committee were quite right in refusing to interfere, for there was nothing for them to do, nothing in fact which they could do. The plaintiff could go back when he pleased, there was no legal impediment. If, on the other hand, the plaintiff had been expelled, the refusal of the other members of the committee, and of the board of education, to take any action in the premises, did not create, and does not affect, any liability of the defendant involved in this action. That action is trespass for an assault and battery, the declaration consisting of but one count. All the force used against the plaintiff is fully justified, and the judgment for the defendant should not be disturbed. The plaintiff stands here on his legal rights, and is certainly entitled to enjoy them, but his position on this record is such that he should have them in strict measure, not running over.

There should be no new trial.

In this opinion the other judges concurred.