Henry Russ v. Michael Good
| Decision Date | 06 May 1916 |
| Citation | 97 A. 987,90 Vt. 236 |
| Parties | HENRY RUSS v. MICHAEL GOOD |
| Court | Vermont Supreme Court |
February Term, 1916.
TRESPASS for assault and battery. Plea, son assault demesne. Trial by jury at the September Term, 1914, Washington County Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.
Reversed and remanded.
Richard A. Hoar for the plaintiff.
S Hollister Jackson and John W. Gordon for the defendant.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.
The action is trespass for assault and battery, and the case was tried on a plea of self-defence,--issue thereon being under the rule, treated as joined. The parties were stone cutters employed in a shed in Barre. It was the custom of the workmen to eat their dinners in a room adjacent to the main shed, at a table so situated that one end of it was against a wall, and one side was only far enough from another wall to make room for a long bench on which the men sat. The evidence was sharply conflicting, but there was testimony tending to show the following facts. The trouble here involved took place at the noon hour while the men were eating at this table. Some controversy arose between these parties and a bet was proposed, but not carried out. During the dispute which had become acrimonious, the defendant stepped up onto the table and across it; and on his way dealt the plaintiff a heavy blow on the jaw, while the latter was standing on the floor. There was evidence of previous threats made by the plaintiff against the defendant, and that on this occasion, when the defendant walked across the table to go to the main shed, as was the custom of the men who sat back of the table, the plaintiff moved along the front of the table to intercept him; that the plaintiff then assumed a threatening attitude, called the defendant vile names, and made a lunge to strike him in the stomach; that the defendant was excited and afraid, and warned the plaintiff to stand away; that the latter continued to advance toward him, swearing and threatening; that the defendant had no time to step back, and to protect himself from the impending assault, struck the blow referred to, and passed on into the shed. Various witnesses testified to the effect that it was the custom of the men to walk across the table when they finished eating as a short cut to the shed. To this line of evidence, the plaintiff excepted. In support of this exception, the plaintiff invokes the rule,--frequently approved in our cases, Aiken v. Kennison, 58 Vt. 665, 5 A. 757; State v. Wilkins, 66 Vt. 1, 28 A. 323; Clark, Admr. v. Smith, 72 Vt. 138, 47 A. 391; Scott v. Bailey, 73 Vt. 49, 50 A. 557,--that because a person does a thing once, or does it in a certain way, is no evidence that he does the same thing or does it in the same way on another occasion. But this rule is wholly inapplicable. The question here is not did the defendant walk across the table, but what was his purpose in so doing. All agreed that he did, in fact, go over the table. It was the plaintiff's theory, unmistakably manifested throughout the trial, that the defendant jumped up onto the table to be in a better strategic position for his attack on the plaintiff; while the claim of the defendant was that he was merely taking the short cut to the shed. As characterizing and explaining his action in this respect, the evidence was admissible.
Subject to the plaintiff's exception, the defendant was allowed to give evidence of the plaintiff's previous reputation as a fighting man, together with proof that this reputation was then known to him, the defendant. This line of evidence was allowed to range over a rather extended period, but remoteness is usually a question for the trial court to decide, Smith v. C. V. Ry. Co., 80 Vt. 208, 67 A. 535, and we see no reason for treating this case as exceptional. The evidence was clearly admissible, though the question of excessive force was not in issue. A blow or other violence necessary to one's protection is lawful; and the defendant had a right, in justification of his conduct, to show the known character of the man with whom he had to deal. This was necessary in order to show that his own action reasonably appeared to him to be necessary for his protection. McQuiggan v. Ladd, 79 Vt. 90, 64 A. 503, 14 L.R.A. (N.S.) 689. The rule deducible from the authorities is this: When one is assailed by another, and from the nature and circumstances of the attack, viewed in the light of known threats or hostile conduct made or exhibited by the assailant, and his known character for violence, he has reasonable ground to believe and does believe that he is in danger of bodily harm, he may be justified in striking his assailant without waiting to be actually struck himself. And this rule is equally applicable whether the question is how much force he is justified in using, or is he justified in using any force, in his defence.
George Ladue was a witness for the plaintiff. In cross-examination he was asked if prior to this occasion he had heard the plaintiff abuse the defendant. The plaintiff objected on the ground that what may have occurred before the time in question was immaterial. Under exception, the witness was allowed to answer, and said that he had heard the plaintiff abuse the defendant, but that he did not think he meant it. Counsel for the defendant asked to have the last clause of this answer stricken out, but to this the plaintiff objected. Thereupon, defendant's counsel asked to have the whole answer stricken out, and to this, also, the plaintiff objected; and the answer was allowed to stand as given. The defendant now insists that the plaintiff's attitude toward his requests amounted to a waiver of his exception. But we take no time with this question, for as we have just seen, the evidence was material and properly received as characterizing the attack upon the defendant and as indicating to him what his own action should be.
It appeared that the defendant was prosecuted for a breach of the peace on account of what took place on the occasion in question, and that he pleaded guilty to the charge. Subject to the plaintiff's exception, he was allowed to explain that he entered this plea to save money, acting under the...
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