Shain, &C. v. Markham

• Decision Date: 16 October 1830
• Parties: <I>Shain, &c.</I> <I>vs.</I> <I>Markham.</I>
• Court: Kentucky Court of Appeals

27 Ky. 578

Shain, &c. vs. Markham.

Court of Appeals of Kentucky.

October 16, 1830.

Error to the Mercer Circuit; WM. L. KELLY, Judge.

Judge UNDERWOOD, delivered the opinion of the court.

MARKHAM declared against the plaintiffs in error in two counts, for batteries. The last count alleges a wounding. Shain, &c. plead by way of justification, "that the plaintiff broke and entered a certain house, situate in the county of Mercer, then and there subject to the control and in the actual occupancy of the defendants, and although often requested, refused to depart therefrom. Whereupon, the defendants, as they well might do, gently laid their hands upon the plaintiff to remove him from the said house, using no further or other force than was necessary for that purpose, which, &c." To this plea, the plaintiff replied, "that at the time of committing the several injuries, in the declaration mentioned, the house, in the plea mentioned, was a dwelling house, in the possession and occupation of, as well the plaintiff as the defendants, and divers other persons holding and occupying the same, in common; and that the defendants made the several assaults, &c." To this replication the defendants rejoined, "that the plaintiff was not, at the time mentioned in the replication of the plaintiff, an occupant and possessor in common with the defendants, of the house, in the said replication, mentioned, and of this they put themselves upon the county." Whereupon, a jury came, &c. and found for the plaintiff $100 in damages, for which, judgment was rendered. A motion for a new trial was made and overruled. The assignment of errors, questions the sufficiency of the declaration, and the correctness of the decision overruling the motion.

The declaration contains a good cause of action, although not very formally set out. If any error has been committed prejudicial to the defendants, in the circuit court, it is to be found in the decision overruling the motion for a new trial. There was but one issue made up. The jury were sworn to try the issue, which turned on the point, whether the plaintiff, at the time of the assaults, batteries and wounding complained of, was an occupant and possessor in common with the defendants of the house, from which the defendants undertook to expel the plaintiff.

The case of McIlvoy vs. Cochran, II Marshall, 276, whilst it fully supports the doctrine, that an assault and battery may be justified in defence of possession, invaded by actual force, and equally so by constructive force, after a request to depart, does clearly assert the principle, that a wounding cannot be justified barely in defence of possession. If, however, the intruder commits an assault upon the possessor or his family, when the latter undertakes to remove him, then, in defending the assault, a wounding may be justified. It follows from these principles, that so much of the declaration as charges a wounding, has not been sufficiently answered by the plea of the defendants. The plea is substantially a good bar to the assault and battery charged, but is not good beyond that. The issue which grew out of the allegations of the plea, cannot be regarded as constituting a defence broader than the plea.

As the jury were sworn to try the issue alone, and not to assess damages for so much of the cause of action as had not been answered by the plea, they could not properly find damages for the wounding alleged, and which had not been answered. It would have transcended their province, to decide on any thing not embraced by the issue. If, upon the evidence, therefore, the jury should have found the issue they were sworn to try, in favor of the defendants, the court ought to have granted a new trial, although a part of the cause of action, as alleged in the declaration, remained unanswered. It is manifest that the damages assessed were found by the jury, alone upon the ground, that the issue was against the defendants, for there was no evidence establishing a wounding other than that arising from the failure of the defendants to answer the charge.

The leading facts proved, were these:

Markham had been raised a member of the society denominated Shakers, established in Mercer county. The assault and battery complained of, took place on Sunday. On the preceding Thursday, the sisterhood "dealt with him," in the second story of a brick house, in which it may be inferred he had lived for years. The precise nature of the interview between Markham and the sisterhood is not explained. It may be inferred that personal violence was inflicted on him. After this transaction, he was requested to leave the brick house, and to remain at the tavern, forty or fifty yards distant, until Francis Voris came home, when matters could be adjusted. He consented, upon receiving a pledge from Dunlavy and others, that he should be well treated there, he observing the rules and customs of the...