301 Mass. 481 | Mass. | 1938
These are two actions of tort brought in a district court. One was brought by a minor by his next friend to recover compensation for bodily injuries sustained by this plaintiff from an assault and battery upon him by the defendant in forcibly ejecting him from the defendant’s store.- The other action was brought by the father of the minor plaintiff to recover consequential damages. The trial judge made specific findings of fact and found for the plaintiff in each case. In each case the defendant requested the trial judge to "find as a fact and rule” that the "injury to the plaintiff minor was caused by the concurrent causes of the force used by the defendant and the resistance to ejection from the premises used by the plaintiff minor, and
No error of law is shown.
The requests were primarily requests for findings of fact, and the trial judge, though requested to do so, was under no obligation to make specific findings of fact. Castano v. Leone, 278 Mass. 429. No question of law is presented by the report of the refusal of this request, unless possibly it be the question whether "the plaintiff minor, if entitled to recover, is entitled to recover nominal damages only.” There was evidence that the defendant told the minor plaintiff, a boy then eleven years old, to leave the store, and ejected him therefrom by pushing and kicking him. A finding was warranted that the defendant in so doing used unreasonable force — force in excess of that necessary to overcome this plaintiff’s resistance — and thus committed an assault and battery upon the person of this plaintiff. Ryan v. Marren, 216 Mass. 556, 559. Damages for such an assault and battery, even without evidence of specific bodily injuries to the minor plaintiff, were not necessarily merely nominal, and a ruling of law to that effect could not rightly have been made. Richmond v. Fisk, 160 Mass. 34, 35. Moreover, there was evidence of specific and substantial bodily injuries sustained by the minor plaintiff. And there was medical testimony in substance that these injuries were caused by "the resistance of the plaintiff minor and the blow inflicted by the defendant.” It could have been found, therefore, that the excessive force used by the defendant was a substantial factor in causing these bodily injuries. The defendant by reason of this plaintiff’s resistance may have been entitled to use greater force to eject him from the store than otherwise would have been justified. But
Order dismissing report affirmed.
