Brown v. Kendall, Supreme Judicial Court of MA, 1850 Facts D’s and P’s dogs were fighting. D tried to separate them by hitting them with a stick. While raising the stick, D hit P in the eye. Procedure P sued D for assault and battery. Lower court found for P. D is appealing stating that the jury instructions were wrong – the burden of proof of extraordinary care was put on D. Issue How responsible is a defendant for an unintentional act? In case of the jury believed that the interference by D was unnecessary, should D have the burden of proving that: either D exercised extraordinary care, or that P wanted ordinary care? Law Old Rule: Damage received by a direct act of force from another will be sufficient to maintain an action of trespass whether the act was lawful or unlawful, and neither willful, intentional, or careless. New Rule: D is liable if (1) the intention was unlawful, OR (2) D was at fault – P must prove. Plaintiff cannot recover if 1. P & D using ordinary care, OR 2. D is using ordinary care, but plaintiff not, OR 3. Neither is using ordinary care. (P recovers if he is using ordinary care, but D is not) Reasoning Did they really give a reason??? Given the new rule, jury instructions should have been given that: If both plaintiff and defendant at the time of the blow were using ordinary care, OR if at that time the D using ordinary care and P was not, or if at that time, both the P and D were not using ordinary care, then the P could not recover. The circumstances of a situation dictate what kind and the degree of care that must be exercised. If D’s act was, (and the court finds it so), lawful and proper, and the hitting unintentional, then the action would not lie; UNLESS P believes that due/ordinary care was not exercised. In which case the burden of proof should fall on P. If P wants to recover, then P must prove that D was chargeable with some fault, negligence, carelessness, etc. Holding D. is right. Jury instructions were wrong. New trial ordered. What is “want of care”?