140

permanent injury, is not justifiable because of parental authority.1s8 The duty may be delegated. A teacher may punish a child.139 He may take a pistol from a pupil, and in so doing use necessary force.1 He may chastise for violation of only reasonable rules of order.141 Consequently, chastisement for violation of rule requiring pupils to pay for the destruction of schoolroom property is an assault.142 On the same principle, beating a cook about the head with a belaying pin for willful disobedience on board a vessel in port is an assault, and the assertion by the master of the lawfulness of such punishment will be regarded as an aggravation rather than as a defense. Violence is justifiable only in case of an emergency at sea.143

153. Leave and license, and provocation so recent that the mind of the wrongdoer has not had time to cool, while they may not justify battery, it would seem may serve to mitigate punitive damages, though not actual or compensatory damages.

Since the commission of an assault and battery constitutes a misdemeanor, a license from the person assaulted is no justification.144 Thus a condition in a lease for a sewing machine authorizing an

138 Fletcher v. People, 52 Ill. 395; State v. Jones, 95 N. C. 588; Johnson v. State, 2 Humph. 283; Winterburn v. Brooks, 2 Car. & K. 16; Fitzgerald v. Northcote, 4 Fost. & F. 656. The same rule applies to one standing in loco parentis. Dean v. State, 89 Ala. 46, 8 South. 38. As to right of master to chastise apprentice under 21, but not a servant, see Penn v. Ward, 2 Cromp., M. & R. 338. As to right of master of vessel to flog, Lamb v. Burnett, 1 Cromp. 295. But see post, p. 462, § 160.

139 Sheehan v. Sturges, 53 Conn. 481, 2 Atl. 841; Patterson v. Nutter, 78 Me. 509, 7 Atl. 273.

140 Metcalf v. State, 21 Tex. App. 174, 17 S. W. 142.

141 Marlsbary v. State (Ind. App.) 37 N. E. 558.

142 State v. Vanderbilt, 116 Ind. 11, 18 N. E. 266.

143 Padmore v. Piltz, 44 Fed. 104.

144 Ante, p. 199, "Leave and License." The law abhors the use of force, either for attack or defense, and never permits its use unnecessarily. Howland v. Day, 56 Vt. 318; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630. The absence of anger and the presence of good will in a fight will not alter the character of the assault (Com. v. Collberg, 119 Mass. 350), but will mitigate

entry on the premises and the taking away of the machine by the use of necessary force did not justify an assault, but operated in mitigation of damages.145

Provocation does not justify an assault and battery.146 It would be an unwise law which did not make allowance for human infirmities; and if a person commits violence at a time when he is smarting under immediate provocation, that is a matter of mitigation.147 In order, however, that provocation may mitigate damages, it must have been so recent as to form a part of the same transaction. It must occur at or shortly before the time of the assault. If there has been time for the mind to cool, the defense is lost.148 An insult to one's wife is not legal provocation; 149 nor was the act of a syphilitic Italian in biting off the nose of another person justified, or the damages mitigated, by the fact that such person had assaulted him two or three days previously.150 Publication of a gross insult the night before the assault may, however, serve to mitigate dam

damages (Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 183). The same rule applies to granger battle over a fence. "Although they were old men, it is but just to say that they fought with great spirit and brutality." Shay v. Thompson, 59 Wis. 540, 18 N. W. 473. Between husband and wife, see Pillow v. Bushnell, 5 Barb. 156.

145 Fredericksen v. Singer Manuf'g Co., 38 Minn. 356, 37 N. W. 453. Compare Colvill v. Langdon, 22 Minn. 565. The right to sue for an assault and battery committed by throwing plaintiff down and ravishing her is not affected by the fact that she did not resist sexual intercourse to the utmost, though she might not in that event be entitled to damages by reason of the defilement. Dean v. Raplee, 75 Hun, 389, 27 N. Y. Supp. 438.

146 Ante, p. 398.

147 Lord Abinger in Frazer v. Berkeley, 7 Car. & P. 621; Perkins v. Vaughan, 5 Scotts, N. R. 881; Linford v. Lake, 3 Hurl. & N. 275; Avery v. Ray, 1 Mass. 12; Lee v. Woolsey, 19 Johns. 319; Maynard v. Beardsley, 7 Wend. 560; Ireland v. Elliott, 5 Iowa, 478; Kift v. Youmans, 86 N. Y. 324; Burke v. Melvin, 45 Conn. 243.

148 Thrall v. Knapp, 17 Iowa, 468; Goldsmith's Adm'r v. Joy, 61 Vt. 488, 17 Atl. 1010.

149 Dupee v. Lentine, 147 Mass. 580, 18 N. E. 465.

150 Bonino v. Caledonio, 144 Mass. 299, 11 N. E. 98. A fortiori, acts of provocation committed more than a year before are irrelevant. Prindle v. Haight, 83 Wis. 50, 52 N. W. 1134. Et vide Tatnall v. Courtney, 6 Houst. (Del.) 434. That plaintiff entered complaint against defendant for intoxication is

ages.151 On the other hand, where an assault induced by insulting language was followed by kicking the plaintiff after he was lying on the floor, an award of punitive damages was justified.152

The current language of the cases is that leave and license and provocation are in mitigation of damages. It would seem, however, more accurate to say that no facts and circumstances can be given in mitigation of actual damages, unless they furnish a legal justification, and are therefore a defense to the cause of action.153 It is insisted that provocative words cannot be given in mitigation of actual or compensatory damages, but only upon the question of punitive damages. 154

not sufficient legal provocation. Roach v. Caldbeck, 64 Vt. 593, 24 Atl. 989. Nor is commitment for contempt. Millard v. Truax, 84 Mich. 517, 47 N. W.

1100.

151 Ward v. White, 86 Va. 212, 9 S. E. 1021.

152 Crosby v. Humphreys (Minn.) 60 N. W. 843. Abusive epithets addressed to a person 14 hours after an assault was made upon him are admissible in evidence to show that the assault was made with express malice. Spear v. Sweeney, 88 Wis. 545, 60 N. W. 1060.

153 Birchard v. Booth, 4 Wis. 67-76, commenting on Cushman v. Ryan, 1 Story, 100, Fed. Cas. No. 3,515, which held that provocation might reduce damages to merely nominal damages. Et vide Corcoran v. Harran, 55 Wis. 120, 12 N. W. 468; Robison v. Rupert, 23 Pa. St. 523; Jacobs v. Hoover, 9 Minn. 204 (Gil. 189); Watson v. Christie, 2 Bos. & P. 224; Dresser v. Blair, 28 Mich. 501; Brown v. Swinford, 44 Wis. 282; Prentiss v. Shaw, 56 Me. 427; Voltz v. Blackmar, 64 N. Y. 440.

154 Goldsmith's Adm'r v. Joy, 61 Vt. 488, 17 Atl. 1010, commenting on many cases. And see Caspar v. Prosdame, 46 La. Ann. 36, 14 South. 317. One assaulted and beaten is entitled to at least nominal damages, though the assault was induced by insulting language. Crosby v. Humphreys (Minn.) 60 N. W. 843.

THE FAMILY AT COMMON LAW.

154. The common law did not recognize the family as a legal entity and as having rights as an association of persons.1

" 2

"Next to the sanctity of the person comes that of the personal relations constituting the family." However, it seems that prior to the statute of laborers (23 Edw. III. 1349) no action at law lay for any injury involved in such relations.3 The preamble of this statute recites the mortality consequent on the pestilence of that time, and referred to "the grievous incommodities which of lack, especially of plowmen and laborers, may hereafter come." Among other provisions, it imposed heavy penalties on every person who procured, harbored, or retained the servant of another during the

1 Cooley, Torts, p. 222. The courts have no jurisdiction to interfere as to when and how a maternal grandmother may visit her grandchildren, merely because there is ill feeling between the grandmother and the father. Succession of Reiss, 46 La. Ann. 347, 15 South. 151. A brother may sue a brother-in-law. Burns v. Kirkpatrick, 91 Mich. 364, 51 N. W. 893. However, the right of a child to sue a parent, and suits between husband and wife, for torts, is denied. Post, pp. 462, 463.

2 Pol. Torts, p. 194. Coleridge, J., in Lumley v. Gye, 2 El. & Bl. 216-253. And see Bowen v. Hall, 6 Q. B. Div. 333.

3 Pol. Torts, p. 197.

time he had contracted to serve. From this statute arose the actions commonly called "per quod actions," because of the peculiar wording of the pleadings. The action lay under the statute by the employer against a third person who interfered with the relationship of his servant, "per quod servitium amisit." This was easily adapted so as to be used by a father for the seduction of his child, and by a husband for abuse by a stranger of his wife (in the form of pleading, "per quod consortium amisit”).

The principle is an important one, and "extends impartially to every grade of service, from the most brilliant and best paid to the most homely, and it shelters our nearest and tenderest domestic relations from the interference of malicious intermeddlers.” * Many injuries to the family relations might fairly be classed as acts done at peril, because such wrongs (conspicuously, seduction) are constantly and properly viewed as trespass. In many instances, however, the basis of recovery is negligence, especially when the defendant's inadvertence diminishes capacity of servant, wife, or child to labor. And finally the action of the master for interference with his contract with his servant has become the basis for a class of cases commonly known as "malicious interference with contract," in which the defendant's evil motive is of the essence of the wrong.

MASTER AND SERVANT.

155. Certainly, since the statute of laborers," the common law has recognized the right of a master to recover for the actual damage he may have suffered by the wrongful interference by a third person with his relationship to his servant, by personal injury to the servant, or otherwise depriving the master, in whole or in part, of his service.

Nature of Injury.

The action of the master for loss of service is thus of great antiquity, and had its origin in a state of society where service as a

4 Haskins v. Royster, 70 N. C. 601-605. Et vide Daniel v. Swearengen, 6 S. C. 303; Morgan v. Smith, 77 N. C. 37.

523 Edw. III. (A. D. 1349).