Obier v. Neal — 6 Del. 449

Majority

p. 449

Joshua Obier v. Joseph Neal, William Neal, and William H. Neal.

Headnote

A son cannot justify an aásault and battery in defence of his father, if the latter was the aggressor and a trespasser from the beginning of the combat with another ; but if he was not, the son can then only justify such a degree of force as is necessary for the father’s defence and security from the attack of the other party.

Action for an assault and battery. Joseph Heal assaulted Obier with a large stick, uplifted with both hands, and drawn back in a threatening manner. Obier seized

p. 450

a small one, but which he did not raise, but held in his hand by his side, when Heal struck- him a hard blow on the top of his head with his stick; and then Obier returned the blow with his stick, but with less violence, on the side of Heal’s head. They then dropped their sticks and closed with each other, when William Heal seized the plaintiff by the right arm, and while he thus held him, William H. Heal caught up the stick which Joseph Heal had dropped, and struck the plaintiff Obier a severe blow over the head with it. William H. Heal pleaded a justification of his assault and battery upon the plaintiff in defence of his ■ father, Joseph Heal; and upon this evidence the counsel on both sides invoked the charge of the Court as to the sufficiency of his plea of justification under the circumstances. -

C. S. Layton, for plaintiff.

W. Saulsbury, for defendants.

The Court,

charged the jury: That to sustain the plea it must appear that the father was first assailed by the plaintiff, and was resisting his attack, when the son interfered to defend him. For if the father was the aggressor and committed the first assault, and was consequently a trespasser from the beginning of the combat, and was not himself justifiable in the assault and battery committed by him upon the plaintiff, then the plea of the son could not avail him, for he became a co-trespasser with his father, and was liable with him in the action. But if the father was not the aggressor, and a trespasser himself from the beginning of the fight, and was only repelling the attack of the plaintiff in his own defence, when the son interposed, as he might lawfully do in such a case in defence of his parent, then he would not be liable; provided he used only such force as the danger to which his father was exposed at the time rendered necessary for his defence and security. If, however, he exceeded that degree of force, even under such circumstances, he would still be liable.

Verdict for the plaintiff.