I am unable to agree with the conclusion of the majority. The opinion adopts the rule that, in determining whether punishment inflicted by a teacher is reasonable, "considerable allowance should be made to the teacher by way of protecting him in the exercise of his discretion. Especially should he have this indulgence when he appears to have acted from good motives and not from anger or malice. Hence the teacher is not to be held liable on the ground of excess of punishment, unless the punishment is clearly excessive and would be held so in the general judgment of reasonable men. . . . But if there is any reasonable doubt whether the punishment was excessive, the master should have the benefit of the doubt." This principle, applicable where a teacher deliberately and intentionally inflicts corporal *Page 582 punishment, a fortiori controls when, as here, only an unintentional injury incident to the use of physical restraint essential to discipline is in question. See Peck v. Smith, 41 Conn. 442, 446. It is my conception that the above test, which excuses a teacher from liability "if there is any reasonable doubt" that the force used was excessive, is one to be applied not only by the trial court in passing upon the evidence but by this court as well in testing the sufficiency of the trial court's finding.
The opinion fails to mention these further facts appearing from the finding and material in determining the reasonableness of the defendant's conduct under the above rule: The plaintiff's defiance of Mrs. Taylor and of the defendant occurred within either the presence or hearing of twenty-five pupils. The defendant throughout had only his right hand with which to control the plaintiff, his hat and the strap being in his left. He pushed the plaintiff to the door just as they were arriving at the top of the stairway, and as the defendant there knelt upon him with one knee the plaintiff's fourteen-year-old brother approached, who, when ordered by the defendant to go to his room, retorted: "Why should I?" It was subsequent to this and to restrain the plaintiff's continuing efforts to escape that the defendant changed to a sitting posture. Notwithstanding the aggravation and the potential danger to the defendant implicit in the situation, there is no finding of either anger, malice or improper motive upon his part. A skin abrasion about the size of a thumbnail was the only external evidence of injury to the plaintiff. Had this not been sustained the defendant's kneeling and sitting upon the plaintiff would not have caused osteomyelitis. X-rays of his back were negative and there were no pathological changes in his abdomen. *Page 583
There are two facts shown by the finding of particular significance in determining whether under the rule it is sufficient to sustain the conclusion that the defendant used excessive or unreasonable force. One is the lack of opportunity for deliberation by reason of the emergency which confronted him, and the other is that, whatever the force applied by him, it caused per se no injury to the plaintiff. The facts indicate that upon arriving at the stairway the plaintiff's resistance and attempts to injure the defendant had reached a stage which not only required either use of more effective means of control or abandonment of the discipline proposed but also rendered instant decision and action by the defendant essential. Resort to the kneeling and sitting complained of immediately ensued. There is no finding that the defendant used any violence, that he applied the whole or any considerable part of his weight to the plaintiff or of how long any weight at all was applied, or even whether in sitting upon him the defendant occupied a position astride, which would not only suggest a capacity more easily to control the plaintiff without the application of his weight but also opportunity to sustain this upon his own knees and feet. It may well be doubted whether the facts, without more, that the defendant assumed the postures of kneeling and then sitting upon the plaintiff and that in the process he brought some of the weight of his own body to bear in attempting to control him, would be sufficient to warrant the conclusion that unreasonable force was used. Be this as it may, whatever the weight or force applied to the plaintiff it caused no external injury or indication of injury, though the plaintiff's efforts to escape did result in the abrasion on his shoulder. While there are facts found which might support the inference that the plaintiff's lower back was strained or injured to some extent *Page 584 during his melee with the defendant, either as a result of the force which the defendant applied to him or of his own frantic efforts to escape, or both, and so might have supported a finding by the court determining which was the fact, in the absence of such finding no force employed by the defendant is shown either to have injured the plaintiff or to have been sufficient to terminate the defendant's privilege as teacher. Nor in my judgment can it properly be held that the lone reference in the conclusion quoted in the opinion to "the crushing weight of the defendant" is sufficient to obviate this fundamental deficiency in the finding and establish these facts beyond a "reasonable doubt." The facts found are therefore incapable of supporting the judgment.
The rule quoted in the opinion was originally enunciated by the Vermont court in 1859. There probably was good reason for it then. There can be no doubt that there is today, when the all too common lack of respect for authority and disdain for discipline among school children are a matter of both common and judicial knowledge. In view of these conditions in particular, public school teachers are entitled to the fullest protection which this rule affords. It is my conclusion that under it, upon this record, the defendant is entitled to relief from this judgment, that there was error and that a new trial should be ordered. *Page 585