Kirby v. Foster – Case Brief
Summary of Kirby v. Foster, 17 R.I. 437, 22 A. 1111 (R.I. 1891).
Facts: Kirby (P) worked as a bookkeeper for Foster (D). When fifty dollars could not be accounted for, Foster blamed Kirby and withheld fifty dollars from his pay. When Foster gave Kirby money to pay the other employees, Kirby followed his attorney’s advice and took his own pay including the fifty dollars and returned the balance to Foster. The defendant grabbed plaintiff and tried to take the money back. Kirby sustained personal injuries and brought this lawsuit.
At trial, the court ruled in favor of the plaintiff and defendant appealed, taking exception to the jury’s instructions. Foster asserted that he was justified in using force because he and Kirby had a master servant relationship, and Kirby’s taking of the money was a conversion.
Issue: Is a party justified in using force to retake property that he believes is his?
Holding and Rule: No. An owner may not commit assault and battery to recover possession of property even if possession is wrongfully withheld. The defendant was not justified in using force because the plaintiff was acting under an honest claim of right. Plaintiff stated what he had done and returned everything except what he believed to be his. It is irrelevant whether his taking was lawful or not. A party may only use force if the other party used violence to get the money in the first place.
Constructive possession ceased when Kirby honestly claimed the money as his own. It was not conversion because he believed that he had the right to take it.
See Moore v. Regents of the University of California for a property law case brief involving an issue of conversion in which the defendant, without consent, used the bodily fluids and tissues of the plaintiff to patent a cell line.