Hathaway v. Rice

The opinion of the court was delivered by Royce, Cxi. J. This must be taken as a plea to the whole declaration. It commences in bar of the action generally, and proceeds to allege, that, before and at the several times in the declaration meirtioned, the defendant was a school master and the plaintiff was Ms scholar, — that the plaintiff was then and there guilty of the insolence and disobedience alleged, — whereupon the defendant corrected him, &c. And in order to give to this language' its obvious and natural import, it should be understood in a plural and distributive sense, as applying to the different occasions on which the trespasses are charged. The plea also concludes in bar of the entire action. And there is, moreover, an established rule, that every plea shall be treated as a plea to the whole declaration, unless it is expressly limited to some particular portion. Gould’s PI. 362. We must, then, inquire, whether the plea is sufficient, considered as a plea to the whole declaration. To be so, it must appear to contain an answer to all that is alleged as the direct ground and gist of the action, and such answer must be valid and sufficient in law. In regard to the first of these requisites the defendant insists, if [107] any of the acts charged in the declaration are not comprehended within the terms used in the commencement of the plea, and consequently are not attempted to be justified, that those acts should be considered as matters of aggravation merely, and, as such, not requiring any justification. But matter of aggravation, correctly understood, does not consist in acts of the same kind and description as those constituting the gist of the action, but in something done by the defendant, on the occasion of committing the trespass, which is,-to some extent, of a different legal character from the principal act complained of. As where -the plaintiff declares in trespass for breaking and entering his dwelling house, and alleges, in addition, that the defendant also destroyed his goods 'in the house, assaulted and beat his domestics, or debauched his daughter, or servant. Now, conceding that for some or all of these acts the plaintiff might support trespass, yet it could only be done by an essential change in the frame and technical character of his declaration. And hence they would be regarded as matters alleged for the purpose of aggravating the trespass declared upon, by showing the motive with which it was committed, unless, upon a justification being pleaded, the plaintiff should see fit to waive his first and ostensible cause of action, and set them forth in a replication, or new assignment, as distinct and substantive grounds of recovery. Taylor v. Cole, 3 T. R. 292. Hubbell v. Wheeler, 2 Aik. 359. • In this instance, however, «11 the grievances charged must be looked upon as acts of direct trespass to the plaintiff’s person, and all remediable by an action of the same class and denomination. And in Bush v. Parker et al., 27 E. C. L. 312, where the declaration charged assaulting, seizing and laying hold of the plaintiff, pulling and dragging him about, striking him many violent blows, forcing him out of a certain field into and through a pond, and there imprisoning him, and the plea justified assaulting, seizing and laying hold of the plaintiff, and pulling and dragging him about, it was held, that the alleged grievances, which the plea omitted to notice, were in themselves trespasses, requiring to be justified. Tindal, Ch. J., says, — “ It is plain, that they are links in a chain of trespasses, following each other, and not mere aggravation of the first assault.” And, in our opinion, it is no less evident, that, aside from the averment of certain special damages as consequent upon the acts charged, [108] the present declaration exhibits a mere succession of trespasses, each requiring some competent justification, or excuse. It therefore becomes necessary to determine in' how extensive a sense the words “ assaulting, beating, and ill treating,” as used in the introductory part of the plea, shall be understood and .applied. When the defendant in a case of this kind would plead in bar generally, he may commence his plea with such a general reference to the charges contained in the declaration, as will necessarily embrace the whole subject of complaint, or he may, as in this case, set down in detail the several alleged acts which he proposes to justify. But in the latter case the justification is usually confined to the acts thus specified; so that, if the declaration alleges a mayhem, or a wounding and knocking the plaintiff down, and the plea is silent in these particulars, such charges will not, in general, be held to come within the scope of the justification. Now the declaration, in alleging the trespasses committed, goes far beyond the necessary legal import of the introductory terms used in this plea; for neither of these is held, ex vi termini, to include an actual wounding, or such other acts of extreme violence and severity as the declaration charges. Titley v. Foxall, Willes 688. Williams v. Jones, 2 Str. 1049, Ham. N. P. 149. And hence those terms, without the explanatory words, “as in the declaration mentioned,” would not, as I think, render the plea sufficiently comprehensive to meet the whole declaration. But, with the aid of these expressions, the plea may be understood as assuming to justify the assaulting, beating, and ill treating, precisely as they are described and set forth in the declaration. And if so, it is co-extensive with the alleged cause of action. We are brought, then, to the question, whether a sufficient justification is disclosed for all that is alleged against the defendant. The plea is based upon the right of a school master to correct his scholar, a right which has always been practically and judicially sanctioned. But it rests upon similar ground as the right to correct a child, or servant, and the chastisement must not exceed the limits of a moderate correction. 1 Hawk. P. C. 130. 1 Stephen’s N. P. 219. And though courts are bound, with a view to the maintenance of necessary order and decorum in schools, to look with all reasonable indulgence upon the exercise of this right, yet, whenever the cor» [109] rection, as confessed by the pleadings, or as proved on trial, shall appear to have been clearly excessive and cruel, it must be adjudged illegal. The matter may, indeed, be so presented by the pleadings, that the court would not be able to decide, from them alone, whether the master had abused his authority; as where the plea of moderate correction proceeds to allege resistance-by the scholar, so that the acts of the master should be referred, in part, to self defence. The plea would then become somewhat analogous to that of son assault demesne, and whether an excess of force had been used, could, in general, be determined only by the evidence on trial. But such is not the case upon these pleadings. It is therefore as competent for the court to test the merits of this plea upon demurrer, as to determine when the plea of molliter manus imposuit is a good answer to the charges in a declaration. The latter plea will justify acts which amount to assault and battery in law, as the forcible expulsion of a person from one’s house, or land, when he refuses to leave it on request. But since the party, if unresisted, can exercise his right in such a case without violence and outrage, such a plea, without more, is not sufficient, when the declaration alleges the infliction of severe blows, a wounding of the plaintiff, or knocking him down. The plea must therefore aver some adequate excuse for such acts of severity ; as that they were rendered necessary by the plaintiff’s resistance. Gregory & wife v. Hill, 8 T. R. 299. Oaks v. Wood, 2 M. & W. 791. Considerations of a similar bearing are applicable here. We cannot know the precise degree of severity which the occasion called for, but nothing is disclosed to justify the defendant in proceeding to extraordinary lengths. If any such ground existed, it should have been placed upon the record. As the case now appears, we have no difficulty in saying, that the chastisement was carried far beyond the limits of a moderate correction. Judgment of the county court reversed, and judgment that the plea in bar is insufficient.