57 Mich. 176 | Mich. | 1885
Drew recovered $633 damages against ■defendant for assault and battery. Defendant brings error. The circumstances, so far as they are not disputed, were these : .Defendant had become owner of property in Big Rapids that had been mill property lying west of the Grand Rapids & Indiana Railroad. This was once owned by one Moon, •and while he so owned it a spur track had been taken from a
Defendant claims that the stick was a sawed-off broom-
It appears from the record that the case became greatly magnified by some extraneous matters, and there was much in the course of the trial which the court evidently regarded as of doubtful propriety, and let in with some hesitation. W e shall, however, confine ourselves to such questions as arose upon the charge, as we can hardly believe that a new trial will be allowed to be affected by the exaggerations which seem to have made out of what no physician has deemed a very serious wound a murderous injury.
The whole case, so far as the alleged assault is concerned, involved but a few questions. It is not disputed, and the court held, that the plaintiff was actually intruding and trespassing on defendant’s ground, with a design of permanent occupancy. But the court also held that defendant had no right to use any degree of force to keep off the trespassers, if the railroad company, under whom plaintiff had to justify, claimed rights there. And the court held that there was evidence of such a bona fide claim, and further, that if defendant had no right to push plaintiff in the first instance he was in fault in striking the blow, and must pay compensatory damages. He also referred several times to the claim of damages of $5000 in the declaration as the only absolute
Some other portions of the charge are complained of, but as they mostly bear upon- what is raised by these rulings, we need not consider them separately.
In opening the summing up, after referring to the case as one of great importance, because of the large claim of damages, the court told the jury there was no dispute “ as to the fact that an assault and battery was committed, and the time when it was committed, and the person by whom and upon whom the injury was committed.” An assault was then defined as involving an attempt “ with unlawful force ” to inflict bodily injury, and a battery as an actual injury, which in this case was a real one. And in the same connection the jury were told, as they were afterwards told, that they had •entire discretion as to damages within the sum claimed in the declaration.
When the jury were told that defendant had committed an assault and battery, and that every assault and battery was a use of unlawful force, they were practically told to find for the plaintiff, and give discretionary damages; and when they had their attention subsequently called to the fact that plaintiff could never sue again, although he might be prostrated on his bed during his whole life-time, they were authorized to act on the theory that the injury might pro. duee future and permanent mischief not yet developed, and might assess their damages oh that possibility. All of this was erroneous. There was a dispute whether the blow was aimed at all against plaintiff’s safety, or directly against his person. The whole body of the controversy bore upon its legality ; and there was no testimony whatever which tended • to show that all of the effects of the wound were not already
If an assault is always unlawful, then it was not admitted by defendant that' he. had committed one. But the definition is incorrect. An assault may be entirely lawful, as either excusable or justifiable, and it involves every “ attempt or offer, with force and violence, to do a corporal hurt to another.” Toml. Law Diet. “ Assault.” The jury, therefore, were misled in the outset into an assumption which, from the peculiar amount of the verdict, does not seem to have been corrected. And while there are in subsequent instructions some explanations which bear in another direction, they were so qualified as to leave room to the end for the original impression.
Upon the question of the original trespass, it appears by plaintiff’s own showing that he knew defendant disputed the right of the company. He could not justify his own entry unless the company could do so, as he did not enter in his own right. We find nothing in the record which tends to show either that the company was in ignorance of the exact, condition of the title, or that it claimed any adverse holding. ■So far as there is any evidence at all, it bears in the other direction.' It appears, without any contradictory evidence that we have discovered, that the only persons who had any right to act for the railroad proposed to respect defendant’s claim. It would be unjust to the corporation to attribute to it a design which was unlawful, without proof that some responsible agent was engaged in it. Plaintiff, according to his own statement, communicated with no one but an assistant road-master and a master of transportation, neither of whom can be presumed to have authority to represent the company in claiming disputed titles, and he also says that he proposed to go forward on his own responsibility, without reference to their orders. Under such circumstances it is difficult to see where there is any room for justification shown, or for holding him to be anything but a trespasser on his own responsibility. And it cannot be questioned that the entry of plaintiff and his gang of men to. relay the track,, if tortious, at, all,
Tkei’e was nothing in the push asserted to have been given in the first place to amount to a wrongful assault on a trespasser, or to justify force on the part of plaintiff. And if defendant used his stick to defend himself from what seemed to him to be an assault, there was no wrong in doing so. And if the act of plaintiff was such as appeared to involve serious bodily harm or peril to his life, we are not prepared to say that he would be deprived of his right of self-defense by even' a technical unlawful assault which did no damage.
All these considerations were in the case, and upon any theory of the conduct of the parties the instructions went too far. Passing any other grounds of error as unnecessary to be dealt with, the judgment must for these be
Reversed, with costs, and a new trial granted.