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Colonial Cases

Jones v. Read, 1871

[assault]

Jones v. Read

3 February 1871
Source: The North-China Herald, 8 February 1871

 

LAW REPORTS.

Feb. 3rd, 1871

Before C. W. GOODWIN, Esq., Dy. Chief Judge.

W. T. JONES v.  T. READ.

Claim of $250 damages for assault.

   Defendant pleaded that the assault was not of the serious character represented in the plaintiff's petition, and that he had great provocation.

   Plaintiff, sworn, said - I am an American, and was chief officer of the steam-tug "Samson."  On the night of the 31st December I called Saint Nicholas Hotel.  Mr. Read was there and several strange gentlemen.  In course of conversation I happened to mention that Mr. Read once had a prize-fight in Tientsin.  He immediately jumped up and asked me why I brought that up.  I told him I meant no offence or insult by it, and was willing to recall the remark.  The he said he would fight me, but I told him I could not fight, as I had been sick for two days.  He then slapped my face, and as I still would not fight he spat in my face, and said, "fight now."  At that time the strange gentlemen, whom I did not know, came up and told him he ought to be ashamed, and took him away.  Some scuffle ensued, and the men went out.  I stopped in the house about twenty minutes longer, and started to go on board the steamer, then lying at the dock.  When I got some distance, I heard footsteps behind me, and thinking it might be a friend I turned round, and received a blow on the temple.  I saw it was Read and said to let me alone as I could not fight, but he said "you son of a --------, I'm going to lick you;" and I said he might do so as long as he liked.  He beat me severely on the head, knocked me down, dislocated my shoulder, and then ran away down the street.  I went on board, and received medical assistance next morning, and I have been under the doctor's hands ever since.  My time had expired on the "Samson," and I was next day going on the ship "Thomas bell," but the assault prevented my doing so.  The next morning, after the doctor had set my arm, I sent a note to Mr. Read, asking him to call and see me.  He did not respond to that note.  I have not paid my doctor's bill.

   His Lordship said it would be necessary that the witness should give some account of what expense he had been put to.

   Plaintiff handed in Dr. Macgowan's claim for Tls. 50, and continued - I was to have had $50 a month on board the "Thomas Bell," as chief officer.  I will not be able to do anything for the next month, and I have sustained injury which will permanently affect my arm.  The doctor tells me it will never be so strong again.  It was dislocated at the shoulder, and was never injured in the same way previously.

   Cross-examined by defendant. - I say I am a chief mate.  I have a master's certificate and have been a master for three years.  There was something going on at the table at Pindar's.  I made a bet with you of $1 which you won, and I wanted to make a second one.  I had no money to bet with.  I might have said you were afraid to lay your money, but I called you nothing out of your name.  I was not sober, but can you say I was drunk?  Mr. Pinder did not turn me out when you went away.  I wanted Dr. Macgowan to come here, but he said it was not necessary, that the certificate would be sufficient.  I asked him for my bill, and I did not ask him to make it a certain sum.

   Defendant said he wished to have the Doctor's evidence in regard to this; and plaintiff said he was equally desirous that he should be called.

   His Lordship said it was most proper that Dr. Macgowan should be called, and the case would therefore be adjourned after the examination of the witnesses present had been concluded.

   Cross-examination by defendant continued. - I went on board the "Samson" the night you assaulted me and did not fall down on the way.  When I got up from the ground and found my arm hanging loosely I knew it was dislocated.  I took a gun out this week, when I went walking, and found I could not use my arm freely.  I received no verbal answer to my note.  I never raised my hand to you in Pindar's house.  I can swear my shoulder was never out of place before.  When you came up to me on the bund, I said nothing to you, but to let me alone.  When the other men were holding you up I did not come and call you fearful names and strike at you.  Mr. Holmes wrote the note to you.  I was advised here to withdraw the criminal summon, but by no one outside.  I owe Turner & Co. some money, and none to Holmes, but I don't see what liabilities I may have has to do with you.  I call the witnesses to prove the slapping and spitting on my face in Pindar's. None of them wanted to fight with you.

   To the Court. - I recollect distinctly what happened.  It costs me about $35 to $40 a month living on shore.

   To Defendant. - I can give no proof at present that I was going as chief officer of the "Thomas Bell."  I did not go and attempt to kick you.  I am not naturally a very quarrelsome man; I can produce a good discharge from every ship I have ever been in.  I could not walk about till the third or fourth day after the assault.  I was in the doorway of the Astor House on the Tuesday following, but had my arm in a sling.

   Defendant wished to warn the Court before the witnesses were called that several of them bore himself personal animosity.

   MIJOR NEWMAN, an Englishmen, sworn, said - I am a gas engineer.  I recollect an affair at the Saint Nicholas on New-year's eve.  I went over there to dinner, and we were sitting playing cards when this man Read came in.  He spoke to us and shook hands with me and one or two more there, and then played cards with the proprietor.  While he was doing so plaintiff came in and began to chaff him about something which happened some time ago in Tientsin.  Some words ensued, and eventually Read hit plaintiff on the side of the head, and asked him to fight.  Jones held down his hands and said he did not want to fight, and Read spat in his face three times.  I pulled Read away. That was all that occurred in the house, ands when we pulled Read away we turned him out.  Jones had had a little drink but was not drunk.  I had never seen him before that time.  He did not hit Read at all.  I don't think Jones made apology for the chaff.  Read might have had about as much drink as Jones.  I stayed in the house long after Read went away, and saw nothing further between them.

   Cross-examined by defendant. - I have never had any animosity against you, more than that I kept you a little while, and never sent the bill in.  We never fell out, but we never speak - that's all the animosity.  You wanted to fight anybody at Pindar's that night.  I did not want to fight with you.  I never go round making squabbles.  I swear that I never challenged you to fight.  You lent me some money that night, and I paid you back about five minutes afterwards.  Had you been assaulted as Jones has, I would have come here and spoken for you as I do for him.  I speak the truth whether it turns against or for you.  I held you up to fight, as you wanted to do so. 

   Defendant remarked that the Court would see the affair as nothing but a pot-house brawl.

   Witness continued - Jones stayed ¾ of an hour after you left.  I afterwards went to the Astor House to see if it was true that you had assaulted him on the Bund.  I was sober, and I treated you to a drink at the bar, which is more than you ever did to me.

   Defendant made a lengthened reference to a New-year reconciliation of old differences which had occurred between himself and witness.

   Witness continued. - I do not remember to have noticed, when I went to the Astor House, that you had a black eye and nose split.

   After some further irrelevant questioning,

   WILLIAM HILL was caller, and, sworn, said - I am an Englishmen and a gas fitter.   Remember New-year's eve, at the Saint Nicholas.  I was invited to dinner with Mr. Pindar.  After dinner a game of cards was proposed, and Mr. Read came into the room and made a challenge to any one to play him at cards, which was accepted by Pinder.  When Jones came in he laid a wager of $1 on the game, and when Read refused to play a second one, they began chaffing each other about the cards, and then about an affair at Tientsin.  Read asked Jones what he knew about the Tientsin affair and smacked his face, and as he refused to fight him spat in his face three or four times.  We took the part of Jones, and told Read that he did not want to fight, but Read came up to him again, and was pulled away and pushed down into a chair.  Read left the house and Jones left in about ¾ of an hour after.

   Cross-examined by defendant. - I saw no one challenge you to fight, but you offered to fight any one in the room up to a certain weight, and I said sooner than you should fight this man, I would fight you.  I did not strike you on the eye nor scratch your nose.  If I had animosity against you before, it was caused by yourself.  I did not see you afterwards, to know that you were marked on the face.  There was some little quibble about a set of quoits some time ago. (Witness explained it.)  I had no high words with you, I did not see Jones attempt to strike you, but quite the reverse; he put his hands down by his side, and told you he did not want to fight.  I came here when asked by plaintiff to do so, I should have come and done the same for you.

   GEORGE HOLMES, sworn, said - I am an American, and a partner in Turner & Co.'s bakery.  I went, for plaintiff, to see Mr. Read, on the morning of the 1st Jan.  A woman came and told me that Mr. Jones was lying in his own house with his arm broken and his face cut.  I went to him and saw his injuries.  He was lying in bed and had a black eye and his face and lip cut.  He told me how it happened, and I advised him, to write and request an interview and explanation from Read. He told me he could not write, owing to his right arm being disabled.  I said that if he would empower me I would write and take the note to the party.  I did so.  Mr. Read, when he read it, told me he did not know Jones, but that he believed that he had beaten a party the evening previous, and that he had given him all he deserver and would give him the same again if provoked to do so.  I asked him if he had any answer to Mr. Jones and he said no, none whatever.

   Cross-examined by defendant. - You had some scratches on your nose when I saw you on the 1st Jan.; but I do not know if you had a black eye.  I told you yours was a different tale from what Jones had given.  I did not say anything about Jones being at that time out of work.  You said anything but that you were sorry.  I have said I advised him to write this note, but I gave him no advice either about withdrawing or taking out a summons.  Jones owes my firm, Turner & Co., a very small amount of money.

   His Lordship adjourned the case for Dr. McGowan's evidences and to hear defendant's statement.

4th February.

   The Court requested that defendant would now state the ground of his defence, after which his account of the occurrence would be taken in evidence.

   Defendant said - My excuse is that, inside the St. Nicholas, I had been grossly insulted by the plaintiff; that I left the house as soon as I could, but that having done so, I was hailed by the witness Newman.  I stopped to speak to Newman, and while I was doing so, Jones came out, and I said to him "give me an explanation for your conduct inside," upon which he gave me a blow which knocked me down, and a fight ensued. 

   Being sworn, he stated - I am a manager of Mr. Baker's water-boats.  On New-year's eve I went to the St. Nicholas hotel.  There was a party there playing cards, and when they were done conversation went on, and Mr. Pinder and myself player one game at cribbage.  Plaintiff came in and offered to bet me a dollar that Pinder would beat me.  I won that, and we were playing a second game when he offered to bet again, and I put down a dollar but as he had none I picked it up again.  Plaintiff thereupon began to abuse, and called me all manner of bad names and offered to fight me.  After a great many challenges I shoved him away, as he was pressing close on me.  That was the last of the matter then, and we went to the bar, where I pair for d rink for all there.  While we were there Newman and Hill began to ask me about a subscription regarding a man's funeral, and whether I had lost any money by it, as I had paid the bill without receiving all the money.  I said, "no, no thanks to them."  They they[sic] said I was back with this man - that is to say unfriendly - and after a little while they began to talk about fighting, and Hill offered to fight m\e while Newman held me up to it.  Jones then came up, saying, "Ah! I thought them was your friends;" and struck me on the face, scratching my nose.  I knew too well the animosity they had against me to fight there.  I went away as soon as I could, but Newman compelled me to stay on the bund some time, and I heard the door open and plaintiff came out.  I went up to him and said - "Now there's only two of us, give me an explanation of your conversation inside."  Upon that he called me a bad name, and struck me a blow which felled me and gave me a black eye.  He tried to kick me when he knocked me down, but I was up too sharp for him, and then the scuffle commenced with both of us, but as soon as I could get away I did, and plaintiff, as I was told, went on board the "Samson." In the scuffle I lost a pipe, and went next day to Pinder's to ask if he had seen it there.  He told me about Jones being a very quarrelsome man, and how after I had gone he had to put him out.

   His Lordship observed that this, as well as some which had preceded it, was not evidence.  Mr. Pinder ought to have been called by defendant.

   Defendant said he feared to call some of those who might have given evidence, as they might not like it.

   He continued - Well, the next morning, I received this note, stating Jones' should was dislocated.  I s aid I did not believe I had done it, and Holmes might see what a state I was in. He said if that was the case, I had had the worst of it, and it served Jones right.  I remarked that if Jones had his arm hurt, he would not be able to go to his work, but Holmes said it was no matter, as Jones was out of that for the present.  Jones came here to take out a summons for assault, but it was afterwards withdrawn, and I came and saw the Law Secretary about that, and told him I was afraid there wads some evil design against me by withdrawing it.

   His Lordship said the plaintiff has a perfect right to bring the action in the form he did; theta was nothing in that.  Did defendant swear that plaintiff called him a name in the street and struck him?

   Defendant - I swear it.

   Dr. MACGOWAN, called, sworn, said - I was sent for by and saw the plaintiff in this action on the morning of 1st January.  I found he had a dislocated shoulder, and reduced it with much difficulty, not having assistance.  It might have been caused by a fall or a blow, but from the general appearance of the man I should say the latter.  There had been a former fracture of the clavicle, which might have rendered the dislocation more facile.  A fall or being tripper might cause the dislocation, but scarcely a fall walking on the road.  I attended plaintiff all through the month.  The bill was the ordinary one - for reducing, one month's attendance, appliances, and medicine.  Some people's shoulders come out easily, but those are easily put in again; here it was difficult to reduce, and shows that it could not have occurred with unusual readiness from any flaccidity of the muscles.  There were bruises on the head, but I don't think there were any especially on the body.

   To plaintiff - The cut you had on your lip might have occurred without any sharp instrument being used; simply a punch of the hand - knuckles on one side and your teeth on the other.

   To defendant - I always make out my bill according to the professional scale of charges, but make abatement frequently, in certain circumstances, from that down to nothing at all.  The morning I was called to see Jones he told me he was going to sue you.

   Defendant asked - Do you think, doctor, from what you could judge of this man, that he is quarrelsome?

   The question threatened to upset the gravity of the Court, and his Lordship thought was a leading one which ought not to be put.  Witness replied to it that he could hardly say, but he might judge from plaintiff's phrenological development that he was not very combative.

   His Lordship asked the defendant before deciding the case what his means were.

   Defendant replied that he had $40 a month with rations.  He at the same time expressed some doubt as to plaintiff's right to claim to be a master mariner or chief mate, but was here met by the production of certificates of discharge from the latter capacity.

   His Lordship said he had to act as a Jury in this case, and consider what was fair to be done in the circumstances of both parties.  He had no doubt that the defendant had committed the assault on the plaintiff, and it appeared to have been one in which he was in the  wrong, for though a little chaff had passed that was no excuse for laying a man up for a month by a brutal assault.  The evidence of the witnesses, which was given perfectly fairly, was that plaintiff did not wish to fight - that he held his arms down; and his own assertion was that he did not wish afterwards to do so, when he met defendant alone. 

   His Lordship believed plaintiff's account of the matter; and it was clear that he had suffered great loss, and had been kept from resuming his employment. The only thing to be considered was what would be a fair amount for that loss; the plaintiff asked for $250, but the Court would exercise a Jury's discretion in estimating that, and would gibe him $100 and costs of the action.

   Defendant protested his inability to meet the claim; but the Court ordered that he should pay it by installments of $20 as month.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School