Richmond v. Fisk

The declaration contains two counts: one for an assault and battery upon the plaintiff, and the other for forcibly entering the plaintiff’s close. The agreed facts show that the defendant entered the plaintiff’s close by his permission. The fact that, after the defendant entered by permission through the outer door into the hall, he went, against the commands of the plaintiff, into the plaintiff’s sleeping-room, does not constitute a trespass upon the close. Smith v. Pierce, 110 Mass. 35.

But the facts show a trespass upon the person of the plaintiff. Commonwealth v. Clark, 2 Met. 23. On the facts agreed, it must be taken that the defendant, against the express commands of the plaintiff, entered the plaintiff’s sleeping-room and “ took hold of his arm and shoulders and used sufficient force to awaken the plaintiff for the purpose of presenting a milk bill.” If there were any circumstances which would justify this, they do not appear in the agreed statement of facts. Although this trespass is slight, the damages are not necessarily nominal, and they should be left to be assessed by the Superior Court. The judgment should be reversed, and, in accordance with the agreed statement, the plaintiff’s damages should be assessed under the first count.

So ordered.