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TOLLETT v. MASHBURN

April 26, 1960

BERTHENIA TOLLETT, JOINED BY KELSIE TOLLETT, HER HUSBAND, PLAINTIFFS,
v.
AUSTIN MASHBURN AND LORENE HENDRICKS (HENDRIX), DEFENDANTS.



The opinion of the court was delivered by: 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 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 be 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 ...

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