McLean v. Colf

SLOSS, J.

Action to recover damages for personal injuries resulting from an alleged assault and battery by the defendants upon the plaintiff. The cause was tried without

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a jury, the court making its findings in favor of the plaintiff, and entering judgment in her favor for three hundred dollars. The defendants appeal. Their only contention is that the evidence fails to sustain the findings.

It appears that the defendant Guy V. Coif, as contractor; had undertaken to construct a dwelling-house for the plaintiff. A dispute arosd concerning the completion of the contract, and the owner agreed with the contractor that if the latter would do certain specified work, Mrs. McLean would consider the contract as completed. This understanding was embodied in a letter signed by Mrs. McLean and her husband, and addressed to Coif. On the following day Coif, with his codefendants, came to the house to do the work agreed upon. Mrs. McLean met them, and requested certain other changes in place mf those specified in her letter. To this the contractor assented. He proceeded to write a new agreement embodying the new terms. He laid the letter of the preceding day on a table, and was proceeding to write the new agreement when the plaintiff took the letter and placed it inside her bodice, stating that she would keep it. Coif demanded its return, which was refused, and he thereupon attempted to take it from her by force. The plaintiff resisted, and Coif called his codefendants to his aid. The three men continued their efforts to take the paper from the plaintiff, she meanwhile resisting and screaming, until a neighbor appeared on the' scene, whereupon the defendants desisted. According to the plaintiff’s testimony, which was in some degree corroborated, the defendants treated her with considerable roughness, not to say brutality, inflicting bruises and swellings upon her person, and causing her pain from which she suffered for two weeks or more.

The claim of the appellants that the paper was the property of the appellant Guy Y. Coif; that the plaintiff, by seizing it, gained only a momentary custody, rather than the possession, of it, and that said Coif had the right to use force to protect his possession, or to regain his momentarily interrupted possession, may be conceded. But the right to use force, particularly as against the person of another, is always limited by the condition that the force must be no more than is reasonably adequate and necessary to the occasion. (5 C. J. 631; 2 Am. & Eng. Ency. of Law, 2d ed., 981;