Fortier v. Stone

Parsons, C. J. This suit arises out of a personal encounter in the streets of Groveton July 3, 1917, between guards employed by the Odell Manufacturing Company for the protection of its property and certain of its former employees. The evidence appears to have been voluminous but in the course of the trial the controversy was brought to a narrow issue. The jury were instructed without exception or objection that recovery could be had against none of the defendants unless the defendant Stone was first found liable and that the only assault and battery for which recovery could be had against Stone was the infliction of a wound by a bullet from a revolver fired by Stone. The plaintiff claimed and his evidence tended to show that Stone intentionally fired at the plaintiff thereby causing the injury complained of. The defendants pleaded the general issue with a special plea in which it was alleged that the revolver was fired to summon assistance and that by accident and without intent on the part of Stone the plaintiff was injured by a bullet glancing from the ground. This plea was not an admission of the assault with matter of justification but was “matter of excuse [which] is an admission of the fact; but saying it was done accidentally, and without any default in the defendant; and that . . . may be either pleaded or given in evidence on the general issue.” Bull. N. P. 17. .The defendants not having pleaded son assault demesne could not set up self-defence. Wheeler v. Whitney, 59 N. H. 197; Jewett v. Goodall, 19 N. H. 563. Their evidence tended to support the plea they did file and they offered no evidence tending to prove self-defence. There was evidence given by plaintiff's witnesses upon cross-examination which would have supported a plea of self-defence but it does not appear this evidence was relied upon as establishing non-liability. The defendants now deny that they defended upon that ground. • In this situation the issue for the jury was apparently simple. Did Stone shoot at the plaintiff as the‘plaintiff claimed or did he discharge the revolver to summon assistance as the defendants claimed and, if the latter, was what he did a reasonable thing to do under the circumstances? Although the action was trespass, Stone *239 would be liable in that form of action for the direct consequences of his act whether the resulting injury was intended or due to negligence. Ricker v. Freeman, 50 N. H. 420; Dalton v. Favour, 3 N. H. 465. The plaintiff excepted to the submission of the issue of self-defence and to the failure to instruct the jury, as requested, that if they found Stone intentionally shot the plaintiff, liability was established. The jury were instructed as to the law of self-defence. They were told to consider what was apparently necessary for Stone to do to defend himself and that what they found reasonable for him to do would not constitute a wrongful assault and battery no matter what the consequences, even if death resulted. Liability does not arise from an unintentional injury resulting from a lawful act where neither negligence nor folly is imputable to him who does the act. Paxton v. Boyer, 67 Ill. 132; s. c. 16 Am. Rep, 615; Brown v. Kendall, 6 Cush. 292; Morris v. Platt, 32 Conn. 75. Stone was not in fault when he was doing what he had a legal right to do. So far as the instructions relating to self-defence were intended to inform the jury as to what Stone might do without being in fault they were applicable to the case. But the submission to the jury of an issue not in the case is reversible error. Benoit v. Perkins, ante, 11; Moody v. Perley, 78 N. H. 17, 21. Whatever the purpose of the language it plainly tended to mislead the jury by directing their attention to an issue not open to the defendants and making decisive a fact to which the plaintiff had not been called upon to direct his evidence or argument. While the jury could not have found Stone was not liable under the instructions unless they thought shooting at the plaintiff was a reasonable thing to do, no issue had been made on that point. The defendants’ contention was that discharging the revolver to summon assistance was reasonable. They conceded by their plea and the course of the trial that shooting at the plaintiff was unreasonable. The plaintiff failed to have a fair trial when the jury were permitted to find in favor of the defendants a fact which they had not put in issue but conceded to be as the plaintiff claimed. The plaintiff’s request that the jury be instructed that if Stone fired at the plaintiff he was liable should have been given. The error cannot be found to have been cured by an examination of the entire charge. The only reference in the charge to the issue made by the parties is the statement after reference to the right of reasonable action whatever the consequences. “That may involve the determination of Mr. Stone’s purpose in firing his re *240 volver. Did he fire for the purpose of hitting the plaintiff or did he fire to get help?” The jury were not told that this on the pleadings and evidence was a vital question for their decision. If this statement was intended to place before the jury the issue actually made by the case it left them to choose between the applicable and inapplicable rules given them, “instead of placing the law fairly before them in a few plain, direct, and forcible instructions, which would aid them in coming to an intelligent decision.” Cohn v. Saidel, 71 N. H. 558, 566. It is true the defence might have been placed on the ground of rightful intentional shooting of the plaintiff by Stone but since the defendants elected to stand upon absence of intent and the exercise of care the plaintiff was entitled to have the case determined on those issues. As the requested instruction ought to have been given as matter of law the presumption is that the error was not harmless. McBride v. Huckins, 76 N. H. 206, 211. As it does not appear the jury were not misled the error destroys the verdict. The jury were instructed that upon all the issues the burden of proof, the risk of non-persuasion, was with the plaintiff. Upon the issues presented by the pleadings, the defendants’ intent and claim of accident, the plaintiff apparently concedes the instruction to be correct. Paxton v. Boyer, 67 Ill. 132; s. c. 16 Am. Rep. 615; Morris v. Platt, 32 Conn. 75; Brown v. Kendall, 6 Cush. 292, 296. See Bull. N. P. 17, supra; 2 Gr. Ev. s. 85. But it is contended that upon a plea of son assault demesne not only the burden of proof in the sense of duty to offer evidence but also of the risk of non-persuasion is with the defendant. The authorities generally so hold. 5 C. J. 664; 4 Wig. Ev., s. 2485; Ib. p. 3523. The question has not been decided here although it is held that evidence in self-defence is inadmissible under the general issue. Wheeler v. Whitney, 59 N. H. 197; Jewett v. Goodall, 19 N. H. 563. Such plea admits the assault, the intentional interference with the plaintiff’s person. Upon such admission the law presumes in the absence of evidence that the interference was unlawful. Noyes v. Edgerly, 71 N. H. 500, 502; Perry v. Buss, 15 N. H. 222, 224. Hence the burden is placed upon the one making such admission of offering evidence that the interference was lawful. Whether this burden in the sense of the risk of non-persuasion remains with the defendant throughout the case compelling him to make his contention the more probable, in view of our decisions as to the effect of so-called legal .presumptions (Lisbon v. Lyman, 49 N. H. 553-554) and the general abandonment of the practice of shift *241 ing the burden of proof by legal presumption (Cohn v. Saidel, 71 N. H. 558, 570; McKeen v. Converse, 68 N. H. 173; Eastman v. Gould, 63 N. H. 89; Tenney v. Knowlton, 60 N. H. 572; Savings Bank v. Getchell, 59 N. H. 281; State v. Hodge, 50 N. H. 510) is a question of much difficulty. It is not raised, however, by a case in which self-defence is not pleaded or claimed. It is not probable that on another trial the defendants will claim, as they did not in this, that the situation authorized intentional shooting at the plaintiff. The question therefore is properly left open for future consideration. Exception sustained: verdict set aside. Plummer, J., was absent: the others concurred.