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:
"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 ...