Tinkler v. Richter

• Decision Date: 10 December 1940
• Docket Number: No. 47.,47.
• Citation: 295 Mich. 396,295 N.W. 201
• Parties: TINKLER v. RICHTER.
• Court: Michigan Supreme Court

295 Mich. 396

295 N.W. 201

TINKLER

v.RICHTER.

No. 47.

Supreme Court of Michigan.

Dec. 10, 1940.

Action by William H. Tinkler against Frank W. Richter to recover damages for alleged assault and battery. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

Laurence D. Smith, of Grand Rapids, for plaintiff and appellant.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for defendant and appellee.

SHARPE, Justice.

This is an action for damages for an alleged assault and battery. On August 8, 1939, the defendant, plaintiff's brother-in-law, was residing with plaintiff at the latter's home in Grand Rapids. At that time plaintiff was 87 years old and defendant about 60 years old. The kitchen of plaintiff's house adjoins the living room. A door connects the two rooms and a davenport rests against the west wall of the living room facing the kitchen door. On the day in question, plaintiff's dog took a bone and, true to his natural instincts, selected the davenport as a place where he could enjoy the delicacy that had been given him. At this juncture in the stirring events about to be related, the principal actors are not in accord as to what actually took place.

Plaintiff relates that at the time, he was in the kitchen washing dishes; that he heard the dog let out a ‘yelp’ and then the dog came into the kitchen followed by the defendant, who told plaintiff to ‘get that d_____ dog out of here’ and plaintiff by way of reply said, ‘Get yourself out of here and stay out;’ that when the statement was made ordering defendant out of the house, plaintiff was struck by defendant and knocked into the table; that he fell to the floor and laid there a few minutes and then went into the living room and laid on the davenport for an hour before he felt better; and that as a result of this assault on the part of defendant, he (plaintiff) suffered considerable pain in his back, cannot hoe or sweep as he had previously, cannot sleep on his left side and now has a nerve injury caused by the breaking off of certain interosseous bridgings.

Defendant relates that plaintiff's wife is defendant's sister and that she is totally blind, thus explaining why the two principals were doing the housework; that on the morning in question defendant had cleaned the house and washed the dishes and plaintiff went out and got some groceries; that when plaintiff came back he had a bone which he threw on the floor; that defendant went to the kitchen and said, ‘Tinkler, don't leave the dog eat the bone on the floor, * * * why not leave him eat in on the grass' and took the bone from the dog and started for the door; that plaintiff took the bone from defendant and gave it to the dog, who proceeded to eat it on the davenport; that defendant again took the bone way from the dog and plaintiff took the bone from defendant and threw it down and took defendant by the shoulder and said, ‘D_____ you, I am running this place;’ that defendant shoved plaintiff away from him, but did not strike him; that four days following the events above related and while plaintiff was outdoors, walking up and down his driveway, he was beset upon by a person unknown, but who tried to rob him of his pocketbook, resulting in plaintiff being thrown to the ground; and that any injuries plaintiff may be now suffering arise from the assault of the robber or diseases incidental to old age.

Plaintiff brought suit in the superior court of Grand Rapids. The cause was tried and the jury brought in a verdict of no cause of action. Plaintiff appeals and contends that the trial court was in error in giving the following instruction: ‘Now this case, ladies and gentlemen, grows out of an alleged assault: And I may say to you that an assault involves every offer or attempt with force and violence to do a corporeal hurt or injury to another, and having the present ability to carry it into effect; and an assault and battery occurs when one person, without excuse or justification and intentionally beats, wounds and bruises the person of another; and that is what the plaintiff claims in this case, that he was assaulted and that he was beaten, that he was bruised; that the defendant intentionally assaulted him with force and violence and inflicted injury.’

It is urged that the use of the words ‘beat’, ‘wound’ and ‘bruise’ are not essential elements of a battery and that the following instruction: ‘* * * He (plaintiff) may only recover when in your judgment the evidence upon each essential element of the case that it is necessary for him to establish weighs or preponderates in his favor.’, further instructed the jury that a recovery could be had only when the three elements were present.

It is urged by the defendant that the trial court correctly stated the law to the jury in the instruction first quoted above and the following instructions:

‘Now I may say to you if a man voluntarily enters into a fight for the sake of fighting and not in self-defense, in that case if he receives injuries he cannot recover for those injuries, unless it should appear that the person whom he seeks to recover damages from beat him excessively or...