Smith v. Wilson

• Decision Date: 07 June 1899
• Citation: 43 A. 634,21 R.I. 327
• Parties: SMITH v. WILSON.
• Court: Rhode Island Supreme Court

43 A. 634

21 R.I. 327

SMITH

v. WILSON.

Supreme Court of Rhode Island.

June 7, 1899.

Action in trespass for assault and battery by Minnie M. Smith against Allen K. Wilson. From a judgment granting a nonsuit, plaintiff petitions for a new trial. Granted.

Page & Page, for plaintiff.

C. J. Farnsworth, for defendant.

TILLINGHAST, J. This is trespass for assault and battery. The testimony shows that the defendant, who claimed to be an officer, attached, or attempted to attach, a bicycle in the possession of the plaintiff, at the house occupied by her and her husband, in East Providence; that the plaintiff tried to prevent the defendant from taking the bicycle away; that defendant thereupon took hold of her arm quite forcibly, and compelled her to let go of the wheel; that in so doing her arm was slightly injured, and she suffered some pain and inconvenience therefrom; that, when defendant came to the house to serve the writ, his authority to do so was questioned, and plaintiff's husband went for an officer, to ascertain whether defendant could rightfully take the bicycle, and while he was thus away defendant forcibly took the same from plaintiff's possession as aforesaid. She testifies that, in order to get the bicycle away from her, he took hold of her arm and pulled it as hard as he could; that he had to pull hard in order to do it. There is evidence that the arm was red and swollen, and that plaintiff cried out with pain immediately after the injury. At the trial of the case in the common pleas division, the plaintiff was nonsuited, and the case is now before us on her petition for a new trial.

The only plea in the case was the general issue. We think the court erred in granting the nonsuit. The evidence showed that an assault was committed, and the burden was upon the defendant to justify it. The court, in granting the nonsuit, evidently took the view that the evidence showed that the defendant was an officer armed with regular process, and, therefore, that he had the right to take the property in question,—using force, if necessary, in so doing. This view was erroneous. The most that appears from the evidence is that defendant represented himself to be an officer armed with process. But this did not prove that he was such, and, as his authority was questioned, he was bound to plead his official character in justification, if he desired to take advantage thereof. See Williams v. Hathaway, 20 R. I. (pt. 3) 136, 40 Atl. 418. The plea of not guilty,...