[assault - provocation]

Dell v. Ives

Supreme Court of Van Diemen's Land

Pedder C.J., 6 April 1838

Source: Cornwall Chronicle (Supplement), 7 April 1838[1]

Before His Honor Chief Justice Pedder, and four Assessors

This was an action for assault.

Mr. A Stewart deposed. -- On the 12th Dec. last, I was attending a sale at Mr. Francis’s auction rooms; saw the plaintiff and defendant there; plaintiff touched defendant slightly on the shoulder; who, turning round and placing himself in a boxing, attitude, immediately afterwards struck the plaintiff a violent blow on the face, which knocked him down; after receiving the blow, plaintiff became insensible, and was led away from the place.

Cross-examined by the Attorney General for the defence -- Did not see the plaintiff push defendant; defendant is generally supposed to be a wealthy man, but do not know precisely in what his wealth consists; plaintiff touched him on the shoulder, as I imagined, merely for the purpose of engaging his attention to something he wished to say; I am on equally good terms both with plaintiff and defendant.

Wm. Russ Pugh examined. -- On 12th Dec. I was called on to attend the plaintiff, who was exceedingly indisposed, owing, as he stated, to a violent blow which he had received from the defendant; I bled him, and attended him during the two following days; plaintiff was previously labouring under dyspipsia; I believe the injury which he received aggravated his disorder, by operating on his mental faculties; the blow had taken effect immediately under the left eye; it was a severe contusion, but very little blood had flown from it.

Cross-examined by the Attorney General. -- Did not see an advertisement of Mr. Dell’s in the Cornwall Chronicle, complimenting me on my professional skill, the bleeding which I administered was rendered necessary from the nature of the injury which the plaintiff had sustained, and not by the disorder which he suffered under.

Josiah Hamer. -- I was at Mr. Francis’s auction room on the 12th Dec., previously to that time I was totally unacquainted with either of the parties in this action; my attention was drawn to Mr. Dell in consequence of his purchasing a sofa for which I had been his competitor; I did not see the plaintiff push defendant; when Mr. Ives struck Mr. Dell, he fell down, stunned by the effects of the blow, and in falling shattered a window frame which was behind him; the blow, in my opinion, was given with sufficient force to have knocked a bullock down. Being directed to the residence of the plaintiff, I called the same day to see how he was, and found him lying on a sofa very ill; had any shove taken place before defendant struck plaintiff I must have seen it.

This witness underwent a cross-examination from the Attorney General, in that bantering style for which that gentleman in so deservedly celebrated, but nothing was elicited tending to invalidate his former testimony.

Major Wentworth deposed. -- The plaintiff in this action came to the police-office and preferred a complaint against defendant for assaulting him; by reference to his deposition I find it was on the 12th of Dec.; I think it was some time in the forenoon of that day; plaintiff on lifting a handkerchief from his face displayed a very severe contusion under the left eye; he did not press the charge of assault, but craved sureties of the peace against defendant which were accordingly granted.

George Griffiths deposed. -- I was at Mr. Francis’s auction mart on the day in question, and saw defendant strike plaintiff; did not see any provocation given by plaintiff; I think plaintiff became insensible after receiving the blow, and on his recovery, he was removed to Launceston Hotel, supported by two persons, one on each side; plaintiff, when struck, fell as if shot; I believe he was confined to his bed two or three days; for five or six weeks the effects of the blow was visible on his face.

Cross-examined by the Attorney General -- Am not on bad terms with defendant, though I do not associate with him; I might on one occasion have applied to him the epithet “scoundrel;” if I did so, it was in reference to some business in the court of requests.

For the defence, Messrs. Francis and Gullen were examined, but the testimony they afforded was entirely nugatory.

Mr. Haughton deposed. -- That on the 12th Dec. last, as plaintiff was coming down the street, and when nearly opposite to the auction mart, he shoved defendant into the gutter, who, on recovering himself said, addressing the bye-standers, “did you see that,” and immediately retaliated on the plaintiff, by striking him a blow on the face, from the force of which he fell to the ground; he considered that plaintiff pushed the defendant wilfully and not accidentally; was not on speaking terms with defendant, but has a good opinion of plaintiff.

The Attorney General, in his address to the Jury, made reference to an advertisement in the Cornwall Chronicle, promulgated by the plaintiff, and maintained that a man capable of addressing such language to another, was quite competent of giving such provocation to an assault as had been sworn to by the last witness. He also remarked, that as the plaintiff had been indisposed previous to that occurrence, and as he now appeared to enjoy the most robust health, owing, as he alleged, to the skilful treatment he had received from Dr. Pugh, and of whose aid he would probably never have availed himself but from the necessity occasioned by the defendant, he ought to feel himself infinitely obliged to that gentleman for a blow which resulted in such beneficial consequences.

Mr. Stephen, in cross-examining the last witness, previous to making his reply, extracted from him the intelligence, that the shade he then wore over both his eyes, had been rendered necessary to him from the effects of an assault lately committed on him; and pray, said Mr. Stephen, were you in good health previous to that assault, “yes,” answered the witness; I asked the question said the learned counsel, on account of the observation just made by the Attorney General, respecting the benefit which may sometimes accrue to the health of an individual by the reception of a little wholesome chastisement! such as my client received from the powerful hand of Ives. The learned gentleman continued this strain of badinage, till the court was convulsed with laughter, and concluded by calling upon the Jury to shew by their verdict the sense they entertained of the conduct of defendant, who, taking advantage of his physical superiority, had inflicted on the plaintiff a most brutal and unprovoked assault, for as respected, the evidence of the last witness, it was impossible to believe it in contradiction to that of three persons of unimpeachable veracity.

His Honor in summing up, pointed out to the Jury, that it was not their province to put money into the plaintiff’s pocket, but merely to compensate him for the loss of time he had sustained from the conduct of defendant, as also to reimburse him for the expense incurred by medical attendance, perhaps, likewise, they would be justified in considering the injury done to his feelings.

The Jury, after a short consultation, returned a verdict for the plaintiff -- Damages £50.