Brown v. Kendall
Brawling Dogs and an Injured Eye
p. 25, Torts

Who is suing whom, for what, and why:
    Plaintiffs – Brown,
    Defendant – Kendall, Executor of his estate (the defendant died before the action)
    For what: Damages,
    Why: Assault and Battery,

Who is appealing and why? Defendant, appealing improper jury instructions.

What Court: Supreme Court of Massachusetts, 1850

Procedural History: Brown sues Kendall, jury finds in favor for Brown, Kendall files an appeal, Kendall dies before action is brought,

Facts:
1)   Two dogs owned by the plaintiff and defendant were fighting
2)   Defendant was striking the animals with a four (4) foot stick in order to intervene in their fight
3)   Plaintiff (Brown) was standing about a rod’s distance from the animals (roughly 15 feet) and moved a step or two in their direction
4)   The brawl moved closer to the plaintiff
5)   The defendant (Kendall) retreated from the animals striking them as he moved backwards
6)   In the course of the defendants retreat he brought his stick over his shoulder in order to strike the animals again and in doing so hit the plaintiff in the eye causing serious injury.
7)   During the trail the defendant requested that the jury be instructed in the following way and was denied on both accounts.
a.   If both men were using the same level of care or the defendant was using a higher level of care, then the plaintiff could not recover.
b.   “…the burden of proof on all of these propositions was on the plaintiff.”
8 )   Instead the judge instructed the jury that, among other things, if the defendant’s actions were unnecessary then the burden of proof of extraordinary care on the part of the defendant, or want of care on the part of the plaintiff, was on the defendant.

   
Point(s) of Appeal:
(1)   Defendant is appealing the verdict based on the instructions given to the jury that the defendant has the burden of proving he was exercising due care.
·   The judge instructed the jury that if the defendant’s actions to separate the animals were lawful and he was exercising ordinary care then he is not liable. However if those actions were not lawful he is liable, unless he was using extraordinary care. The judge instructed the jury further that if the plaintiff was not exercising ordinary care then the defendant was not liable. Lastly and the position which the defendant objected: if the defendant’s actions were unnecessary then the burden of proof of extraordinary care on the part of the defendant, or want of care on the part of the plaintiff, was on the defendant.


Issue before the Court:
(1)   Is the burden of proof of the plaintiff’s negligence on the defendant?
(2)   Does it matter whether or not the defendant’s actions in attempting to intervene were lawful or unnecessary?

Court Ruling: Verdict reversed, new trial ordered.

Reasons: The Court found that the plaintiff must show that the defendant’s intentions were unlawful or that the defendant was in fault. There was no reason why the instructions asked for by the defendant should not have been given to the jury. If these conditions cannot be proven then the plaintiff cannot recover. The Court also found that it did not matter whether or not the defendants actions were necessary, the only issue which mattered was whether the actions taken were lawful, which they were.

Dissenting opinions: None.