
    Albert G. Howe, Resp't, v. Edward M. Oldham, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Assault—Highways—Charge.
    In an action for assault, alleged to have been committed upon plaintiff, a commissioner of, highways, while he was removing a wagon from a stream, where it had been placed to obstruct him in building a bridge, the defense was that the road was a private one, owned by one H., and that defendant, the servant of II., under his directions, placed the wagon there, and that in defense of his master’s properly he struck plaintiff, using no more force than was necessary. There was a conflict in the testimony as to whether this road was a public or private one. The court charged that there was no defense in any view, and that the only question was the amount of damages. Held, error.
    (Barnard, P. J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      William D. Guthrie, Grant B. Taylor and George C. Austin, for app'lt; William D. Dickey, for resp't.
   Pratt, J.

This is an action for an assault and battery. The plaintiff obtained a verdict for $500, and entered judgment thereon. The defense was that defendant was the servant of one Harriman, who owned and was in possession of certain lands in Waterbury, Orange county, through which a private road ran, and that plaintiff wrongfully entered on this private road and attempted to build a bridge over a brook which crossed it That defendant occupied the brook at the road crossing with a wagon under directions of his master, and plaintiff attempted to remove the wagon as an obstruction; whereupon defendant, in defense of his master’s property, struck plaintiff, using no more force than necessary to defend the property. The plaintiff was the commissioner of highways, and claimed that the road was a public highway of the town.

If this road was the private property of Harriman, he had the right to prevent plaintiff and his men from entering upon it; because the undisputed evidence shows that Harriman was in possession through defendant, who was his agent and servant for that purpose, with authority to prevent trespass; and defendant, in the discharge of his duty, had the right to use reasonable and sufficient force to prevent this trespass. See Penal Code, § 223; People v. Kane, 131 N. Y., 111; 42 St. Rep., 722.

If, on the other hand, the road was a public highway, the plaintiff had the right, and, under the circumstances disclosed by the evidence, it was his duty to remove this wagon and proceed with the work of building the bridge.

This question of fact, whether this was a public or private road, was, therefore, an important one, because there was conflict of testimony as to the force used by defendant, and the circumstances under which it was used. There was conflict of testimony on the question, the character of this road, whether public or private.

The learned trial judge held and charged the jury, among other things, that, upon the evidence, there was no defense in any view, and that the only question for the jury was upon the amount of damages. Defendant excepted. We think the exception well taken. If, as already stated, this was Harriman’s property, the defendant being his servant and in possession with authority to prevent the trespass, and if he used no more force than was reasonable, his justification was complete. The court was requested to put this view of the case to the jury, but refused, and defendant excepted. We think this exception well taken.

Judgment reversed and new trial ordered, with costs of this appeal to the defendant to abide the event of the action.

Dykman, J., concurs.

Barnard, P. J. (dissenting).

The complaint was for an assault and battery. The answer denied the assault, and averred that the assault, if any, was committed in defense of the defendant’s employer. Upon the trial evidence was given tending to show that plaintiff was a commissioner of highways. That while building an abutment to a bridge over one of the highways of the town, the defendant, to obstruct the work, had put a wagon in the brook. That when plaintiff attempted to remove the wagon, the defendant struck him and threw him into the brook. The plaintiff then caused the defendant’s arrest for the assault, to which the defendant pleaded guilty. There was proof given by plaintiff tending to show that the road where the bridge was being repaired was a public highway. There was no record proof that the highway had been laid out, but proof extending over a great many years that it had been used for the general public travel. The record proof that the road had been put on the district in which it was situated for labor upon it was properly received. The plaintiff was shown to be about the public business.

The defendant produced evidence tending to show that the road was a private road only and had never, until recently, been districted as a public road. The defendant, also, gave evidence tending to show that the plaintiff was guilty of an assault, and that thereby he fell into the stream. Under this condition of the evidence, the case went to the jury. The charge of the judge stated to the jury that their verdict would settle nothing as to the fact whether the road was a public or a private one. That there was no dispute but that the plaintiff struck the defendant without any legal provocation. That the jury must determine whether or not the place of the assault was within a public highway or within a private road, the property of defendant’s employer, and fix the damages accordingly. The defendant’s evidence tending to show an assault by plaintiff was true, but he had pleaded guilty of the assault, and was proven to have testified that he “knocked him (plaintiff) in the ditch,” on another proceeding. All the other eye witnesses of the transaction supported plaintiff substantially. The judge treated the case as one where the technical assault was proven. Neither of the attorneys made any exceptions. The case was thus rendered as one of law to either a nominal sum or to substantial damages, as the jury should determine the question of public or private roads. The defendant’s counsel asked no statement of the law as to how far the defendant could go in defense of his master’s right to put a wagon in a stream to prevent the' commissioners from repairing a bridge over it. He should not be treated bn appeal as if he had done so and the judge had refused the instruction. Upon the merits the case is strongly in favor of the plaintiff. There is proof of the use of the road as a highway for a great many years. That as long ago as 1845, the road was under the control of the commissioners of highways. That it was publicly and commonly used for over fifty years. That the assault was arbitrary and wanton. The jury were told that they were not necessarily limited in giving damage to the actual injury; that they could give damages for the outrage and indignity and punitive damages, if they found that the road was a public highway, and that the assault was made on the plaintiff performing his duty as a highway commissioner. In other words, if the defendant intentionally assaulted the plaintiff while in the exercise of his duty, exemplary damages might be given. Such damages could be given for any intentional assault. Hamilton v. Third Ave. R. R. Co., 53 N. Y., 25; Sedgwick on Damages, 5th ed., 517-534.

The judgment should be affirmed, with costs.

Judgment reversed, and new trial granted, with costs to defendant to abide event  