Watson v. Hastings

• Decision Date: 14 October 1897
• Citation: 39 A. 587,17 Del. 47
• Court: Delaware Superior Court
• Parties: ISAAC WATSON v. LEVIN HASTINGS

39 A. 587

17 Del. 47

ISAAC WATSON v. LEVIN HASTINGS

Superior Court of Delaware, Sussex County

October 14, 1897

Superior Court, Sussex County, October Term, 1897.

ACTION OF TRESPASS vi et Armis. The facts sufficiently appear in the charge of the court. The defendant's pleas were "Not guilty," "Son assault demesne" and "Statute of limitations."

After proving by several witnesses that the defendant committed an assault and battery upon the plaintiff by striking him over the head with an ax-helve, at the defendant's store in Delmar, Sussex County, on the evening of October 8, 1895, the physician who had dressed the wound, alleged to have been produced thereby, was called to the stand to prove the nature and extent of the same. In cross-examination, Mr. White asked the physician the following question:

"Could those incisions on the head have been produced there by falling upon a flat substance with a little rise in it?"

Mr Richardson objected, on the ground that the defendant's plea of son assault demesne admitted the assault as laid in the declaration of the plaintiff, and he was therefore estopped from proving that it was done in some other way.

Verdict for plaintiff for five dollars.

John M. Richardson and C. W. Cullen for plaintiff.

R. C. White for defendant.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

PENNEWILL, J.

The court think the evidence admissible. The plea of son assault demesne only admits the assault and trespass. It does not admit the infliction of any particular wound; and there were more than one alleged to have been inflicted in this case.

Suppose there had been a dozen wounds inflicted, all of which affected this plaintiff, we think the defendant should be allowed to show, if he can, that a particular wound was made in some other way than by his act. Or suppose this wound in fact did result from some other cause, the defendant would be permitted to show it if he could.

We think this is admissible. The witness can answer the question.

PLAINTIFF'S PRAYERS.

The plaintiff prayed the court to instruct the jury--First. That if they find from the evidence that an assault was committed by the defendant upon the plaintiff, they should award some damages to the plaintiff, without special damages having been proven.

Lewis vs. Hoover, 3 Blackf. (Ind.), 407; Andrews vs. Stone, 10 Minn. 72; Birchard vs. Booth, 4 Wis. 67.

Second. That if they believe, from the evidence, that, even though the first assault was made by the plaintiff, an excess of force was used by the defendant, the plaintiff is entitled to recover damages for such excess.

Jefferson vs. Adams et al., 4 Del. 321, 4 Harr. 321; Hannen vs. Edes, 15 Mass. 347; Barnet vs. Appleton, 25 Wend. (N.Y.) 371; Likes vs. Van Dike, 17 Ohio 454.

Third. That if they find, from the evidence, that an injury was sustained by the plaintiff by reason of the assault, they should award him damages for the injury done him, and exemplary damages if they believe the assault to have been an aggravated one.

Morgan vs. Curly, 142 Mass.; Caldwell vs. Central Park, etc., R. Co., (N. Y. C. Pl.), 7 Misc. 67, 27 N.Y.S. 397; Townsend vs. Bragg, 99 Cal. 481, 34 P. 116.

Fourth, That in arriving at their verdict the jury should take into consideration, in assessing the damages, the probable future injury that will result to the plaintiff for the act of violence perpetrated by the defendant, the damages which may arise hereafter as well as those which have already arisen.

Shelter vs. York, Crabbe (U.S.), 449; Gurther vs. Blowers, 11 Md. 536.

DEFENDANT'S PRAYERS.

The defendant prayed the Court to instruct the jury:

First, That Hastings, the defendant, being in his own house and having forbidden the plaintiff to enter, and having retreated as far as possible while the plaintiff was pursuing him in a threatening and angry manner, was justified in using such force as was testified by the defendant's witnesses that he did use to eject the plaintiff from his store, and after the plaintiff had been ejected, he, the defendant, was justified in using the ax helve to prevent the re-entry of the plaintiff, the doors having been broken so that they could not be closed against him.

Second, That the defendant was justified in using greater force while defending himself against a trespasser upon his own premises than if he had not been on his own premises.

Third, That the jury are the judges of the fact whether the defendant, Hastings, used greater force than was necessary to defend himself under all the circumstances of the case.

PENNEWILL, J., charging the jury:

Gentlemen of the jury:--This is an action brought by Isaac Watson against Levin Hastings for a forcible and unlawful trespass, called in law a trespass vi et armis. In this case the plaintiff Isaac Watson, has charged the defendant, Levin Hastings, with having on the eighth day of October, 1895, committed upon him an assault and battery, whereby he, the said Watson, was severely injured; and because of such injuries he suffered and still does suffer much pain, and has lost to a large extent the use of the thumb on his left hand, and also the sense of smell. He claims that by reason of said injuries he is incapacitated to a considerable extent from pursuing his usual avocation, viz: that of baker; and he therefore demands from the defendant damages sufficient to compensate him for his pain and suffering, loss of time and capacity in conducting his business, and also for such pain and suffering, and loss of time and capacity as may hereafter be caused or ensue by reason of the injuries complained of.

It appears from the record of the case that there were several pleas entered by the defendant, but the one relied on is known as the plea of son assault demesne; and such plea together with the replication of de injuria, which the plaintiff has made thereto, make it necessary for the defendant to show...