Brown v. Kendall

Supreme Judicial Court of Massachuetts, 1850.

60 Mass. (6 Cush.) 292.

Prosser, p. 6-10


Facts: Brown’s dog and Kendall’s dog were fighting.  Kendall started beating the dogs with a stick to try to break up the fight.  He hit Brown in the eye while raising the stick over his shoulder.  Brown sued for assault and battery.


Issue: How responsible is a defendant for an unintentional act?


Rule: NEW RULE!  If the act was unintentional, then the plaintiff can collect on an action only if the defendant acted without ordinary care and the plaintiff acted with ordinary care.


Analysis: It is suggested in the notes that this case was politically motivated, and that the judge might have been buddies with the captains of industry who were being frequently sued at that time.  The court makes it a lot harder for the plaintiff in a case like this to win.


The case hinges on the definitions of “ordinary care”, “extraordinary care” and “due care”.  I don’t even know where “due care” comes from; it seems like the judge just made it up.


Actually, it just seems like the judge says everything the lower court did is crap and doesn’t matter.  I’m going to take a wild guess since I have two more cases to brief and say that this bit (p. 9) doesn’t matter terribly much.


Conclusion: The court ordered a new trial because the jury instructions given in the original trial were found not to conform to the law.


Notes and Questions


1.     A new trial was ordered because a jury still needs to go back and decide the facts of the case.  They just need to be given the right instructions.

2.     In the Anonymous case, fault played no part.  Whoever got hurt could sue and collect no matter what.  Slowly, the ideas of fault and ordinary care have seeped in.  Shaw would have found for the defendant in Weaver v. Ward because he would have made the plaintiff show that he used due care but Ward did not.

3.     OK!

4.     I think the implication is that the court was using this case to try to make it harder for the common working man to sue the big, bad industrial employers.  I can sort of buy this because the change in the rule seems to come out of nowhere.

5.     Mmmmkay.


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