107 A. 342 | N.H. | 1919
This suit arises out of a personal encounter in the streets of Groveton July 3, 1917, between guards employed by the Odell Manufacturing Company for the protection of its property and certain of its former employees. The evidence appears to have been voluminous but in the course of the trial the controversy was brought to a narrow issue. The jury were instructed without exception or objection that recovery could be had against none of the defendants unless the defendant Stone was first found liable and that the only assault and battery for which recovery could be had against Stone was the infliction of a wound by a bullet from a revolver fired by Stone. The plaintiff claimed and his evidence tended to show that Stone intentionally fired at the plaintiff thereby causing the injury complained of. The defendants pleaded the general issue with special plea in which it was alleged that the revolver was fired to summon assistance and that by accident and without intent on the part of Stone the plaintiff was injured by a bullet glancing from the ground.
This plea was not an admission of the assault with matter of justification but was "matter of excuse [which] is an admission of the fact; but saying it was done accidentally, and without any default in the defendant; and that . . . may be either pleaded or given in evidence on the general issue." Bull. N.P. 17. The defendants not having pleaded son assault demesne could not set up self-defence. Wheeler v. Whitney,
In this situation the issue for the jury was apparently simple. Did Stone shoot at the plaintiff as the plaintiff claimed or did he discharge the revolver to summon assistance as the defendants claimed and, if the latter, was what he did a reasonable thing to do under the circumstances? Although the action was trespass, Stone *239
would be liable in that form of action for the direct consequences of his act whether the resulting injury was intended or due to negligence. Ricker v. Freeman,
The plaintiff excepted to the submission of the issue of self-defence and to the failure to instruct the jury, as requested, that if they found Stone intentionally shot the plaintiff, liability was established. The jury were instructed as to the law of self-defence. They were told to consider what was apparently necessary for Stone to do to defend himself and that what they found reasonable for him to do would not constitute a wrongful assault and battery no matter what the consequences, even if death resulted.
Liability does not arise from an unintentional injury resulting from a lawful act where neither negligence nor folly is imputable to him who does the act. Paxton v. Boyer,
The jury were instructed that upon all the issues the burden of proof, the risk of non-persuasion, was with the plaintiff. Upon the issues presented by the pleadings, the defendants' intent and claim of accident, the plaintiff apparently concedes the instruction to be correct. Paxton v. Boyer,
Exception sustained: verdict set aside.
PLUMMER, J., was absent: the others concurred.