Brown v. Kendall

Facts

George Brown sued George K. Kendall for assault and battery in an action of trespass vi et armis (trespass by force and arms, the old action for a direct physical wrong). The facts in the bill of exceptions (the record of the trial rulings that a party challenges) ruled out any suggestion that the blow was intentional. The whole case rested on the assumption that the damage from the stick Kendall held was inadvertent and unintentional. On the court's account, Kendall was trying to part fighting dogs, one of them his own. In raising his stick for that purpose, the court said, he may have hit Brown in the eye and wounded him by accident. The court called the effort to part the dogs a lawful and proper act. Kendall died while the action was pending, and his executrix was summoned in to defend. A Massachusetts statute provides that actions of trespass for assault and battery survive, reversing the common-law rule that such an action ends when a party dies. At trial, the judge told the jury that if interfering was not a necessary act, Kendall was responsible for the blow unless he used extraordinary care. The judge also put on Kendall the burden of proving either that care or a want of ordinary care by Brown.

Issues

1. When a defendant unintentionally hurts another while doing a lawful act, is he liable in trespass for assault and battery even if he used ordinary care?
2. In such a case, who must prove that the defendant was at fault or failed to use due care, the plaintiff or the defendant?

Holding

Kendall was not liable for an unintentional blow struck while doing a lawful act unless he failed to use due care. The plaintiff had to prove that failure. The instructions that put the burden of proving extraordinary care on the defendant were wrong.