Kirby v. Foster – Case Brief
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. D grabbed P and tried to take the money back. P sustained injuries and sued.
At trial, the court ruled in favor of P and D appealed, taking exception to the jury’s instructions. D asserted that he was justified in using force because he and P had a master servant relationship, and P’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. D was not justified in using force because P was acting under an honest claim of right. P stated what he had done and handed the balance back. It is irrelevant whether his taking was lawful or not. D is only allowed to use violence if P used violence to get the money in the first place.
Constructive possession ceased when P honestly claimed the money as his own. It was not conversion because P believed that he had the right.
Disposition: Affirmed.