Willey v. Carpenter

• Decision Date: 06 February 1892
• Citation: 23 A. 630,64 Vt. 212
• Parties: EZRA WILLEY v. NATHAN R. CARPENTER
• Court: Vermont Supreme Court

23 A. 630

64 Vt. 212

EZRA WILLEY v. NATHAN R. CARPENTER

Supreme Court of Vermont

February 6, 1892

GENERAL TERM, OCTOBER, 1891

Trespass for assault and battery. Heard on demurrer to the defendant's second and third pleas at the December term 1890, Ross, Ch. J., presiding. Demurrer sustained. Exceptions by the defendant, and cause passed to the Supreme Court before final judgment.

Judgment affirmed and case remanded with leave to replead on the usual terms.

Hunton & Stickney, for the defendant.

OPINION

THOMPSON

I. This is an action of trespass for an assault and battery. To the defendant's second plea, the plaintiff demurred specially. The first cause of demurrer assigned is that the plea is argumentative, and the second cause is that it "is double and bad for duplicity." It has been expressly held that each of these causes of demurrer can only be reached by special demurrer, and that the pleader to avail himself of them, "must point out specifically in his demurrer wherein the duplicity or argumentativeness exists." Onion v. Clark, 18 Vt. 363; Buell v. Warner, 33 Vt. 570; Carpenter v. McClure, 40 Vt. 108; 1 Chitty's Pl. (4th Am. Ed.) 667. Under these authorities we think the first and second causes of demurrer are not sufficiently assigned.

However we do not think this plea bad for duplicity. The facts set forth in the plea as occurring prior to the service of the writ in the action brought by defendant's wife against the plaintiff for slander, are stated simply as matters of inducement Gould's Pl. (4th Ed.) ss. 9, 11, Ch. 3. All the plaintiff's alleged actions, speeches and conduct subsequent to that time, taken as a whole, and not singly, constitute the ground on which the defendant puts his defence. Hence, it was good pleading to specially state them, however multifarious they might be. Gould's Pl. (4th Ed.) s. 112, Ch. 6, Pt. 11.

Another cause of demurrer assigned and relied upon, is that this plea does not aver that the plaintiff's course or conduct as alleged, was for the purpose of procuring the defendant to commit the wrong and injury to the plaintiff set forth in the declaration, and we think the plea bad in not having such an allegation.

II. The defendant's third plea is the same as his second plea, with the exception that it alleges that the actions, speeches and conduct of the plaintiff from and after the bringing of the action for slander, as therein alleged, were wilfully done, made and had by the plaintiff, for the purpose of provoking the defendant to strike the plaintiff and thereby obtain this cause of action against him. To this plea the defendant demurred generally.

With reference to this plea, the only point made by the plaintiff in argument, is that the facts therein stated are not such as to justify the alleged assault and battery. This contention is sound.

The alleged speeches and conduct of the plaintiff, although for the purpose of provoking the defendant to strike him, are no defence. Mere words, however gross, and abusive, cannot justify an assault and battery. This is the rule adopted after careful consideration, in Goldsmith's Admr. v. Joy, 61 Vt. 488. This case is so recent, and this question is there so fully discussed, and the authorities cited and examined to such an extent, that we do not deem it necessary to enter upon a further discussion of the question.

Such provocation is only admissible on the question of exemplary damages. That class of cases which holds such provocation admissible in mitigation of actual damages, does not go to the extent of holding it to be a full defence. Keiser v. Smith, 71 Ala. 481 (46, Am. Rep. 342); also see cases cited in Goldsmith's, Admr. v. Joy, supra. The acts of the plaintiff in "malignantly" leering at the defendant and in making taunting grimaces at him, were provocations of the same character as insulting and provoking language. None of these acts were of such a character as to amount to an assault by the plaintiff upon the defendant, and in order to justify him in striking in self-defence, the act complained of must constitute an assault.

If the facts set forth in the third plea are taken to amount to a license by the plaintiff to the defendant to commit the alleged assault and battery, such license is no defence to this action. 2 Greenl. Ev. (10th Ed.) Sec. 85; 1 Hill. on Torts, (3 ed.) 183; 1 Bac. Abr. (Bouv. Ed.) Assault & Battery, 372. The assaulting or beating of one person by another is a breach of the peace and a misdemeanor at common law as well as by R. L. s. 4228. In Stout v Wren, 1 Hawks 420 (9 Am. Dec. 653) the plaintiff and defendant quarrelled and agreed to fight and after they had gone out for that purpose the defendant asked the plaintiff if he would clear him of the law, and the latter said yes, whereupon the defendant beat him, he making no resistance. The court say: "It is equally reasonable and correct, that a man shall not recover a recompense for an injury received by his own consent; but the rule must necessarily be received with this qualification, that the act from whence the injury proceeded be lawful. Hence, in those manly sports and exercises which are thought to qualify men for the use of arms, and to give them strength and activity, if two played by consent at cudgels and one hurt the other, no action would lie. But where in an action for assault and battery, the defendant offered to give in evidence that the plaintiff and he boxed by consent, from whence the injury proceeded, it was...