Lentine v. McAvoy
| Decision Date | 28 January 1927 |
| Court | Connecticut Supreme Court |
| Parties | LENTINE v. MCAVOY. |
Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.
Action for assault and battery by Salvatore Lentine, p. p. a against Arthur V. McAvoy. Judgment for plaintiff, and defendant appeals. Error, and new trial ordered.
Franklin Coeller, of New Haven, for appellant.
Harry L. Edlin and Rocco Ierardi, both of New Haven, for appellee.
Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.
The plaintiff seeks to recover damages against the defendant, a policeman of New Haven, for a wanton and malicious battery committed upon the plaintiff. He offered evidence tending to prove that the battery occurred without provocation on his part, and immediately after the battery he was placed by defendant under arrest.
The defendant officer offered evidence tending to prove that plaintiff remonstrated with him as to the performance of his duty; that as a consequence a crowd gathered; the plaintiff, who remained on the outskirts of the crowd, made faces at the officer and uttered discordant sounds, whereupon defendant started through the crowd to arrest him, but before reaching him, others present intercepted his passage and struck him in the face, and while he was passing through the crowd, in bringing his club down, which he was carrying in front of his body, the club came in contact with plaintiff's nose, resulting in the injuries for which he sues; and that defendant used no more force than was reasonably necessary in arresting the plaintiff; and that he was justified in the arrest.
No error was made by the trial court in requiring the jury to reconsider the case before the court accepted the verdict. Under General Statutes, § 5788, the court had the right to return the jury to a second and then a third consideration if in its judgment it was of the opinion it had mistaken the evidence, or brought in a verdict contrary to the direction of the court in a matter of law. Its course in this instance was within this statute. In refusing to permit the clerk to orally read the verdict when handed him by the foreman, the court failed to follow the better procedure in ordinary cases of which this was one; this was not however a reversible error. Magoohan v. Curran, Adm'r, 71 Conn. 551, 42 A. 656. Upon the hearing upon the motion in arrest of judgment, counsel for the appellant offered to prove by the jurors that none of the jurors had mistaken the evidence or failed to understand it and the judge's charge, and to weigh it and apply the principles announced in the charge to the evidence. The offer was contrary to our practice and opposed to sound principle and adjudicated cases. The motion was wholly without merit and should not have been made.
Defendant's request to charge that a police officer when engaged in arresting one has the right to subdue him or any one interfering with him in making the arrest required the qualification made by the trial court that the force used must be no more than was reasonably necessary in effecting the arrest. The request that if the jury found that the defendant did not intend to strike or injure the plaintiff when he swung his club he could not recover was in conflict with our rule that an unintentional trespass to the person, or assault and battery, if it be the direct and immediate consequence of a force exerted by the defendant wantonly, or imposed without the exercise by him of due care, would make him liable for resulting injury. Welch v. Durand, 36 Conn. 182, 185, 4 Am.Rep. 55. The request that if the jury found the plaintiff was accidentally struck by defendant he could not recover should have been given with the qualification unles the striking was done through the defendant's failure to exercise due care. Morris v. Platt, 32 Conn. 75, 84.
Error is assigned in the court's instruction that if the jury found the assault was committed maliciously and wantonly they might assess exemplary damages, and that a wanton and malicious assault was one committed " is the design to injure, either actually entertained or to be implied from the conduct and...
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State v. Vilalastra
...as to require an expert to express an opinion on the precise question upon which the court ultimately had to pass. Lentine v. McAvoy, 105 Conn. 528, 533, 136 A. 76 [1927]; St. George Pulp & Paper Co. v. Southern New England Telephone Co., 91 Conn. 563, 570, 100 A. 358 [1917]. The court did ......
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National Semiconductor v. Allendale Mut. Ins. Co.
...premeditated or oppressive. See, e.g., Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982, 986 (1978); Lentine v. McAvoy, 105 Conn. 528, 531, 136 A. 76, 77-78 (1927); Egan v. Mutual of Omaha Ins. Co., 24 Cal.3d 809, 822, 169 Cal.Rptr. 691, 697, 620 P.2d 141, 147 (1979); Neal v. Farmers I......
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Green v. Donroe
...v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980); Russo v. Porga, 141 Conn. 706, 708-709, 109 A.2d 585 (1954); Lentine v. McAvoy, 105 Conn. 528, 530-31, 136 A. 76 (1927); then what manner of legal logic excludes invasions by other negligent The fact is the different treatment of intentiona......
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City of Indianapolis v. Ervin, 2-678A203
...subduing an arrestee not to use more force than is reasonably necessary under the circumstances surrounding its use. Lentine v. McAvoy (1927), 105 Conn. 528, 136 A. 76; 5 Am.Jur.2d Arrest § 81 (1962); see also State v. Mulvihill (1970), 57 N.J. 151, 270 A.2d 277; People v. Curtis (1969), 70......