Wright v. Union Railroad Co.

Stiness,. J. ... The plaintiff sues for assault and battery, alleging that the defendant kicked and struck him.nia.ny violent blows, and also.threw him from a,great height, from the platform of ap electric oar,, with great, force and violence to. the ground, while the. car-was moving at a .high rate of speed, whereby he,was greatly bruised. - ...-. The defendant pleads in justification that the plaintiff was *555 a trespasser, stealing a ride on the car, and that he was ejected by the use of only necessary force. • - The plaintiff demurs to the plea. (1) A plea of justification is one of confession and avoidance. It must meet' and justify the cause of action stated in the declaration. It is not enough to justify only in part. The defendant claims that,, in justifying the assault simply, he has done all that he is bound to do, because the other allegations are only matters of aggravation. We. do not think this'is so. When a declaration alleges, acts of such a character as to go beyond a simple assault they are not to be regarded, merely as matters of aggravation, but substantive charges of violence in connection with the assault. Thus it is said in Story’s Pleadings, p. 493, note', that a man cannot plead that he threw stones molliter against a trespasser to remove him; nor justify a wounding; nor striking repeated blows and knocking the plaintiff down in order to turn her out of the defendant’s house. See also Waterman on Trespass (Person and Property),- § '237. Gfould’s Pleading, cap. vi,' § 98, p. 331. In Robinson v. Hawkins, 4 Monroe (Ky.), 134, a plea of 'molliter mamis to an' action of assault and- battery and wottncling was held not . to justify the wounding 'without alleging that the defendants were .first endangered. To the same effect is Boles v. Pinkerton, 7 Dana (Ky.), 453 ; and Gray v. Ayres, do. p. 375, a case of tarring and feathering. • • The reason for this requirement in pleading is that it does not answer a declaration alleging extraordinary or aggravated violence, because the right set up by the defendant “does not primarily authorize, nor its exercise require anything more than gentle and moderate force, ” while it admits an immoderate and aggravated use of it. Mellen v. Thompson, 32 Vt. 407. Assuming the facts to be proved, simply, as pleaded,, the;court would .have to instruct the. jury that the plea was - no justification, because the excessive force made the defendant a trespasser ab initio. , If the facts alleged would be no justification in evidence, they cannot be such in, pleading. The question of excess usually arises on,a replica *556 tion, de injuria, but this is in cases where the plea appears to justify the assault charged. John S. Murdock and Frederick A. Jones, for plaintiff. David S. Baker, for defendant. In this case the assault charged is not simply in striking, &c., as in an ordinary assault, but also in throwing the plaintiff to the ground from a swiftly moving car. We think that the defendant, to justify such a charge, should set forth circumstances which would show that an unusual act of this kind was reasonably necessary. The demurrer to the plea is sustained.