Aldis, J.
Th'e defendant was a teacher in a public school in Burlington, the plaintiff his pupil. The first question presented [120]*120is, has a schoolmaster the. right to punish his pupil for acts of misbehavior committed after the school has been dismissed, and the pupil has returned home and is engaged in his father’s service ?
It is conceded that his right to punish extends to school hours, and there seems to be no reasonable doubt that the supervision and control of the master over the scholar extend from the time he leaves home to go to school till he returns home from school. Most parents would expect and desire that teachers should take care that their children, in going to and returning from school, should not loiter, or seek evil company, or frequent vicious places of resort. But in this case, as appears from the bill of exceptions, the offence was committed an hour and a half after the school was dismissed, and after the boy had returned home and while he was engaged in his father’s service. When the child has returned home or to his parent’s control, then the parental authority is resumed and the control of the teacher ceases, and then for all ordinary acts of misbehavior the parent alone has the power to punish. It is claimed, however, that in this case “ the boy, while in the presence of other pupils of the same school, used, toward the master and in his hearing, contemptuous language, with a design to insult him, and which had a direct and immediate tendency to bring the authority of the master over his pupils into contempt and lessen .his hold upon them and his control over the school.” This, under the charge of the court, must have been found by the jury.
This misbehavior, it is especially to be observed, has a direct and immediate tendency to injure the school, to subvert the master’s authority, and to beget disorder and insubordination. It is not misbehavior generally, or towards other persons, or even towards the master in matters in no ways connected with or affecting the school. For, as to such misconduct committed by the child after his return home from school, we think the parents, and they alone, have the power of punishment.
But where the offence has a direct and immediate tendency to injure the school and bring the master’s authority into contempt, as in this case, when done in the presence of other scholars and of the master, and with a design to insult him, we think he has the right to punish the scholar for such acts if he comes again to school.
[121]*121The misbehavior mtist not have merely a remote and indirect tendency to injure the school. All improper conduct or language may perhaps have, by influence and example, a remote tendency of that kind. But the tendency of the acts so done out of the teachers supervision for which he may punish, must be direct and immediate in their bearing upon the welfare of the school, or the authority of the master and the respect due to him. Cases may readily be supposed which lie very near the line, and it will often be difficult to distinguish ‘between the' acts which have such an immediate and those which have such a remote tendency. Hence each case must be determined by its peculiar circumstances.
Acts done to deface or injure the schoolroom, to destroy the books of scholars, or the books or apparatus for instruction, or the instruments of punishment of the master; language used to other scholars to stir up disorder and insubordination, or to heap odium and disgrace upon the master ; writings and pictures placed so as to suggest evil and corrupt language, images and. thoughts to the youth who must frequent the school; all such or similar acts tend directly to impair the usefulness of the school, the welfare of the scholars and the authority of the master. By common consent and by the universal custom in our New England schools, the master has always been deemed to have the right to punish such offences. Such power is esséntial to the preservation of order, decency, decorum and good government in schools. Upon this point the charge of the court was substantially correct.
II. The court charged the jury that although the punishment inflicted on the plaintiff was excessive in severity and disproportioned to the offence, still if the master in administering it acted with proper motives, in good faith, and, in his judgment, for the best interests of the school, he would not be liable; that the schoolmaster acts in a judicial capacity, and-that the infliction of excessive punishment, when prompted by good intentions and not by malice or wicked motives, or an evil mind, is merely an honest error of opinion, and does not make him liable to the pupil for damages. The plaintiff claims that this was erroneous.
1. It is claimed on behalf of the defendant that the schoolmaster is a public officer, that in his government of the school he is invested with public authority, with discretionary powers, and [122]*122acts in a judicial capacity, and so is not liable for errors of judgment. His authority has been likened to that of public officers,such as listers in the case of Fuller v. Gould, 20 Vt. 643, the postmaster general in Kendall v. Stokes, 3 Howard 87, the mayor" of New York in Wilson v. The Mayor, &c., 1 Denio 595, or a commanfier in the navy, as in Wilkes v. Dinsman, 7 Howard 89.
We think the schoolmaster does not belong to the class of pup-lie officers vested with such judicial and discretionary powers. He is included rather in the domestic relation of master and servant, and his powers and duties are usually treated Of as belonging to that class. In some sense he may be said to act by public authority and to be a public officer, but we do not find him spoken of any where as acting in a judicial capacity, except in the passage from Reeve’s Domestic Relations, which was read to the jury. In no proper sense can he be deemed a public officer exercising, by virtue of his office, discretionary and quad judicial powers.
2. It is also said that he stands in loco parentis, and is invested with all the authority and immunity of the parent. Such would seem to be the doctrine of the passage cited from Judge Reeve’s Work.
The parent, unquestionably, is answefable only fOr malice or Wicked motives or an evil heart in punishing his child. This great and to some extent irresponsible power of control and correction is invested in the parent by natüre and necessity. It springs from the natural relation of parent and child. It is felt rather as a duty than a power. From the intimacy and nature of the relation, and the necessary character of family government, the law suffers no intrusion upon the authority of the parent, and the privacy of domestic life, unless in extreme eases of cruelty and injustice. This parental power is little liable to abuse, for it is continually restrained by natural affection, the tenderness which the parent feels for his offspring, an affection ever on the alert, and acting rather by instinct than reasoning.
The schoolmaster has no such natural restraint. Hence he may not safely be trusted with all a parent’s authority, for he does not act from the instinct of parental affection. He should be guided and restrained by judgment and wise discretion, and hence [123]*123is responsible for their reasonable exercise. The limit upon the parental authority transferred to the master is well expressed by Judge Blackstone. He says :
“ The master is in loco parentis, and has such
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Aldis, J.
Th'e defendant was a teacher in a public school in Burlington, the plaintiff his pupil. The first question presented [120]*120is, has a schoolmaster the. right to punish his pupil for acts of misbehavior committed after the school has been dismissed, and the pupil has returned home and is engaged in his father’s service ?
It is conceded that his right to punish extends to school hours, and there seems to be no reasonable doubt that the supervision and control of the master over the scholar extend from the time he leaves home to go to school till he returns home from school. Most parents would expect and desire that teachers should take care that their children, in going to and returning from school, should not loiter, or seek evil company, or frequent vicious places of resort. But in this case, as appears from the bill of exceptions, the offence was committed an hour and a half after the school was dismissed, and after the boy had returned home and while he was engaged in his father’s service. When the child has returned home or to his parent’s control, then the parental authority is resumed and the control of the teacher ceases, and then for all ordinary acts of misbehavior the parent alone has the power to punish. It is claimed, however, that in this case “ the boy, while in the presence of other pupils of the same school, used, toward the master and in his hearing, contemptuous language, with a design to insult him, and which had a direct and immediate tendency to bring the authority of the master over his pupils into contempt and lessen .his hold upon them and his control over the school.” This, under the charge of the court, must have been found by the jury.
This misbehavior, it is especially to be observed, has a direct and immediate tendency to injure the school, to subvert the master’s authority, and to beget disorder and insubordination. It is not misbehavior generally, or towards other persons, or even towards the master in matters in no ways connected with or affecting the school. For, as to such misconduct committed by the child after his return home from school, we think the parents, and they alone, have the power of punishment.
But where the offence has a direct and immediate tendency to injure the school and bring the master’s authority into contempt, as in this case, when done in the presence of other scholars and of the master, and with a design to insult him, we think he has the right to punish the scholar for such acts if he comes again to school.
[121]*121The misbehavior mtist not have merely a remote and indirect tendency to injure the school. All improper conduct or language may perhaps have, by influence and example, a remote tendency of that kind. But the tendency of the acts so done out of the teachers supervision for which he may punish, must be direct and immediate in their bearing upon the welfare of the school, or the authority of the master and the respect due to him. Cases may readily be supposed which lie very near the line, and it will often be difficult to distinguish ‘between the' acts which have such an immediate and those which have such a remote tendency. Hence each case must be determined by its peculiar circumstances.
Acts done to deface or injure the schoolroom, to destroy the books of scholars, or the books or apparatus for instruction, or the instruments of punishment of the master; language used to other scholars to stir up disorder and insubordination, or to heap odium and disgrace upon the master ; writings and pictures placed so as to suggest evil and corrupt language, images and. thoughts to the youth who must frequent the school; all such or similar acts tend directly to impair the usefulness of the school, the welfare of the scholars and the authority of the master. By common consent and by the universal custom in our New England schools, the master has always been deemed to have the right to punish such offences. Such power is esséntial to the preservation of order, decency, decorum and good government in schools. Upon this point the charge of the court was substantially correct.
II. The court charged the jury that although the punishment inflicted on the plaintiff was excessive in severity and disproportioned to the offence, still if the master in administering it acted with proper motives, in good faith, and, in his judgment, for the best interests of the school, he would not be liable; that the schoolmaster acts in a judicial capacity, and-that the infliction of excessive punishment, when prompted by good intentions and not by malice or wicked motives, or an evil mind, is merely an honest error of opinion, and does not make him liable to the pupil for damages. The plaintiff claims that this was erroneous.
1. It is claimed on behalf of the defendant that the schoolmaster is a public officer, that in his government of the school he is invested with public authority, with discretionary powers, and [122]*122acts in a judicial capacity, and so is not liable for errors of judgment. His authority has been likened to that of public officers,such as listers in the case of Fuller v. Gould, 20 Vt. 643, the postmaster general in Kendall v. Stokes, 3 Howard 87, the mayor" of New York in Wilson v. The Mayor, &c., 1 Denio 595, or a commanfier in the navy, as in Wilkes v. Dinsman, 7 Howard 89.
We think the schoolmaster does not belong to the class of pup-lie officers vested with such judicial and discretionary powers. He is included rather in the domestic relation of master and servant, and his powers and duties are usually treated Of as belonging to that class. In some sense he may be said to act by public authority and to be a public officer, but we do not find him spoken of any where as acting in a judicial capacity, except in the passage from Reeve’s Domestic Relations, which was read to the jury. In no proper sense can he be deemed a public officer exercising, by virtue of his office, discretionary and quad judicial powers.
2. It is also said that he stands in loco parentis, and is invested with all the authority and immunity of the parent. Such would seem to be the doctrine of the passage cited from Judge Reeve’s Work.
The parent, unquestionably, is answefable only fOr malice or Wicked motives or an evil heart in punishing his child. This great and to some extent irresponsible power of control and correction is invested in the parent by natüre and necessity. It springs from the natural relation of parent and child. It is felt rather as a duty than a power. From the intimacy and nature of the relation, and the necessary character of family government, the law suffers no intrusion upon the authority of the parent, and the privacy of domestic life, unless in extreme eases of cruelty and injustice. This parental power is little liable to abuse, for it is continually restrained by natural affection, the tenderness which the parent feels for his offspring, an affection ever on the alert, and acting rather by instinct than reasoning.
The schoolmaster has no such natural restraint. Hence he may not safely be trusted with all a parent’s authority, for he does not act from the instinct of parental affection. He should be guided and restrained by judgment and wise discretion, and hence [123]*123is responsible for their reasonable exercise. The limit upon the parental authority transferred to the master is well expressed by Judge Blackstone. He says :
“ The master is in loco parentis, and has such a, portion of the powers of the parent committed to his charge, as may be necessary to answer the purposes for which he is employed.” An English annotator, in a note to the passage, vefy properly adds, “this power must be temperately exercised, and no schoolmaster should feel himself at liberty to administer chastisement coexten» sive with the parent.”
Judge Swift, in his digest, in a very admirable summary of the powers and duties of the schoolmaster, remarks that if the punishment is immoderate, so that the child sustains a material injury, the master is liable in damages. In a recent case in Mass., Commonwealth v. Randall, 4 Gray 36, the defendant asked the Judge to instruct the jury that the schoolmaster is liable only When he acts malo animo, from vindictive feelings, or under the violent impulses of passion or malevolence, and that he is not liable for errors of opinion or mistakes of judgment, provided he is governed by an honest purpose of heart, to promote by the discipline employed, the highest welfare of the school and the best interest of the scholar.” In the case at bar the court charged substantially according to that request, but iü the case reported in Gray the court refused so to charge, and did charge that if the jury found that the punishment was excessive and improper then the master might properly be found guilty.
The charge was held to be correct upon the hearing of the defendant’s exceptions in the supreme court. In the case of Hathaway v. Rice, 19 Vt. 102, we think the principle involved in the decision establishes the same doctrine.
Suits of this character have frequently arisen in this State, and the rulings of our courts at nisiprius have, we think, been quite uniform on this point. The law, as we deem it to exist, is this : — A schoolmaster has the right to inflict reasonable corporeal punishment. He must exercise reasonable judgment and discretion rn determining when to punish and to what extent. In determining upon what is a reasonable punishment, various considerations must be regarded, the nature of the offence, the [124]*124apparent motive and disposition of the offender, the influence of his example and conduct upon others, and the sex, age, size and strength of the pupil to be punished. Among reasonable person» much difference prevails as to the circumstances which will justify the infliction of punishment, and the extent to which it may properly be administered. On account of this difference of opinion? and the difficulty which exists in determining what- is a reasonable punishment, and the advantage which the master'has by being on the spot to know all the circumstances, the manner, look, tone, gestures and language of the offender, (which are not always-easily described,) a.nd thus to form a correct opinion as to the? necessity and extent- of the punishment, 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. If the punishment be thus clearly excessive, then the master should be held liable for such excess, though he acted from good motives in inflicting the punishment, and in his own judgment considered it necessary and not excessive. But if there is any reasonable doubt whether the punishment was excessive, the master should have the benefit of the doubt. Upon this, point there was error in the charge.
III. The court admitted evidence to show that -the general character of the defendant, as a master, in governing his school, was mild and moderate.
As the court put the case to the jury upon the question of the defendant’s malice in inflicting the punishment, this evidence, in that view, might be admissible as tending to disprove such intent. It might, perhaps, be properly said that the nature of such an action, turning upon that point, involved the character of the defendant.
But as we have already decided that the question of excessive punishment is not affected by the motive or intent of the master, we are of opinion that this evidence of general good character is not admissible upon that issue. Good character does not tend to [125]*125prove that the assault and battery were or were not committed, or that the punishment was or was not excessive.
But when evidence is given tending to show that the master acted maliciously or wantonly, from an evil heart, and the plaintiff claims to recover damages on that ground, there we think the ^evidence would be admissible, (1 Greenleaf’s Evidence, sec. 54 and notes,) to rebut such intent. But it should be strictly limited to that purpose. In other respects we find no error in the charge.
IV. Whether a rawhide was a proper instrument of punishment was left to the jury with very suitable instructions.
The evidence to show that the rawhide was used in other schools in the vicinity was properly admitted to rebut the charge of malice, by showing that he did not resort to an unusual instrument of punishment.
The testimony to show the plaintiff did not claim an excess of punishment on the first trial was proper, as tending to prove that that claim on the then pending trial was not well founded.
Judgment reversed