Monize v. Begaso

• Citation: 76 N.E. 460,190 Mass. 87
• Parties: MONIZE v. BEGASO.
• Decision Date: 03 January 1906
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 87

76 N.E. 460

MONIZE v. BEGASO.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1906

COUNSEL

J. M. Marshall, for plaintiff.

M. J McNeirny, for defendant.

OPINION

MORTON J.

It was undisputed that on the day of the alleged assault the plaintiff and defendant were each in a small boat, called a 'dory,' engaged in hauling lobster pots off Eastern Point, in Gloucester. There had been a previous misunderstanding between them. The plaintiff made an insulting gesture to the defendant, to which the defendant responded in like manner. The plaintiff then held up his fists in a threatening manner, and rowed down towards the defendant, and, when near him, threw an oar at him in harpoon fashion, and followed it up by throwing two or three others. The defendant stood ready with an oar to defend himself, but only used it to ward off those thrown at him by the plaintiff. The plaintiff's dory in the meantime drew alongside the defendant's dory; but the defendant instead of rowing away as he could easily have done after the plaintiff had thrown his oars at him, tried to pull the plaintiff on board his own boat with a gaff, and, failing in that, jumped aboard the plaintiff's boat, where they clinched, and the defendant threw the plaintiff so that he fell face down, as he meant he should, over one of the thwarts, and the defendant held him in that position by the hair of the head and 'punched' him eight or nine times as hard as he could. The defendant further said on cross-examination that 'the man had been imposing on him that he was going to punish him a little mite; that the man was aggravating him, and he would not stand all that; that he meant business when the plaintiff offered to fight; and that he shifted hands while striking him.' He also testified on cross-examination 'that he was sorry afterwards, when he saw the plaintiff's face, and realized when he turned around that he was pretty badly hurt.' It is plain, we think, that the assault was unjustifiable, and in no proper sense in his own defense. At the time when it took place there was nothing whatever to prevent the defendant from rowing away and leaving the plaintiff. He not only did not try to do that, but tried first to pull the plaintiff into his own boat, and, failing in that, jumped into the plaintiff's boat, and when he had him at his mercy proceeded to punish him because he had aggravated him. The fact that he...