Judgment on the verdict.[[10]]
STEARNS and Wife v. SAMPSON
Supreme Judicial Court, Maine, 1871.
Reported in 59 Maine Reports, 568.
On exceptions, and motion to set aside the verdict as being against law.
Trespass. The writ contained three counts: one for breaking and entering the plaintiffs’ close and carrying away the household furniture; the second, for taking and carrying away the household furniture of the wife; and the third,[[11]] for assault on the wife.
There was evidence tending to show that after entry and notice to leave, and refusal by the wife and her mother, with an expressed determination on their part to hold possession against the defendant, the latter called in assistants and ordered them to remove the furniture, and they did remove it from some of the rooms; that upon going to one of the rooms, the door was fastened, and the assistants opened it; that the furniture, except bed, was removed from Mrs. Stearns’ sleeping-room.
That the assistants remained there several days and nights.
That the defendant caused the windows to be removed; prevented food from being carried to the house; that a tenant was let into the L of the house, and had charge of the defendant’s bloodhound, five months old, and permitted him to go into the house; that the furniture was removed into a house near by, and Mrs. Stearns notified of its whereabouts; that the doors fastened by Mrs. Stearns were removed; that Mrs. Stearns finally left by compulsion with an officer, and was sick several weeks.
The rulings sufficiently appear in the opinion.
The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions, and also filed motions to set aside the verdict as being against law and the weight of evidence.
Appleton, C. J. There is in the declaration a count for an assault and battery upon the female plaintiff. In reference to this branch of the case, the following instructions were given: “Was there a trespass committed upon the female plaintiff? She is the only one who seeks for damages. Whatever may have been the injury inflicted upon the other inmates of that house, she can recover on this suit only for that which was inflicted upon her. In order to constitute an assault, it is not necessary that the person should be touched, but there should be certain indignities. In the language of one of the decisions, if the plaintiff was embarrassed and distressed by the acts of the defendant, it would amount in law to an assault.” The acts and indignities which from the charge might constitute an assault were the bursting open a door, which the defendants had no right to fasten, and the inconveniences resulting from taking off the doors and taking out the windows, which made it uncomfortable for the female plaintiff to remain, where remaining, she was a trespasser. So the bringing a bloodhound by the defendant into his house, which is proved to have barked, but not to have bitten, and the making a noise therein, with other similar acts, it was contended, would amount to an assault and trespass, and of that the jury were to judge. Now, such is not the law. An assault and battery is clearly defined by R. S., c. 118, § 28, thus: “Whoever unlawfully attempts to strike, hit, touch, or do any violence to another, however small, in a wanton, wilful, angry, or insulting manner, having an intention and existing ability to do some violence to such person, shall be deemed guilty of an assault; and if such attempt is carried into effect, he shall be deemed guilty of an assault and battery.” Now, the removal of a door or windows, of the owner in possession, would constitute no assault. Indeed, as has been seen, 6 Allen, 76, the owner would, in attempting it, have the right to use as much force as was necessary to overcome the resistance of the unlawfully resisting and trespassing tenant. Acts which may embarrass and distress do not necessarily amount to an assault. Indignities may not constitute an assault. Acts aggravating an assault differ materially from the assault thereby aggravated. Insulting language or conduct may aggravate an assault, but it, not an assault.[[12]] So the acts of the defendant in taking out the windows of his own house, in a bleak and cold day, might distress one unlawfully occupying and illegally refusing to quit his premises, but they could in no sense be regarded as an assault upon her. One may be embarrassed and distressed by acts done “in a wanton, wilful, angry, or insulting manner,” where there is no “intention nor existing ability to do some violence” to the person, and yet there be no assault. The instruction on this point is equally at variance with the common law and the statute of the State.[[13]]