Tort Law

Kirby v. Foster

17 R.I. 437, 22 A. 1111

Facts

• Kirby worked for a business associated with Foster.
• Money was entrusted to Kirby for the purpose of paying employees or carrying out company-related payments.
• Kirby believed that wages or other amounts were personally owed to him.
• After receiving legal advice, he deducted the disputed amount from the money in his possession.
• He returned or accounted for the remaining balance.
• Foster believed that Kirby had no right to retain the deduction.
• Rather than immediately seeking recovery through legal proceedings, Foster physically confronted Kirby.
• Foster seized or struggled with Kirby in an effort to take the money back by force.
• Kirby suffered injuries during the struggle.
• Kirby sued Foster for assault and battery.
• Foster argued that he was exercising the privilege of recapturing his own property and was therefore entitled to use reasonable force.

• Whether an owner may use physical force to recapture property from a person who obtained possession peacefully.
• Whether Kirby’s retention of the money was a purely wrongful taking.
• Whether Foster was required to use legal proceedings rather than self-help.

• A person in possession of property may use reasonable force to prevent an immediate wrongful taking.
• A limited privilege of recapture may also exist where:
o the owner was wrongfully dispossessed;
o the dispossession occurred without a genuine claim of right; and
o the owner acts promptly or in fresh pursuit.
• Force is generally not privileged where the person holding the property:
o originally obtained possession peacefully or with the owner’s consent; and
o retains it under an honest claim of right.
• In such circumstances, the disputed owner must ordinarily use legal process.
• Even where recapture is permitted, the force used must remain reasonable.

• Foster had voluntarily entrusted the money to Kirby.
• Kirby did not obtain it through theft, violence, trickery or a sudden wrongful seizure.
• His original possession was therefore lawful and peaceful.
• Kirby retained a portion because he believed that it represented money properly owed to him.
• Even if that belief was legally incorrect, it constituted a claim of right rather than a purely dishonest or secret taking.
• The dispute was therefore about entitlement to money already lawfully in Kirby’s possession.
• Allowing Foster to use force would permit persons to decide contested ownership and contractual claims through violence.
• The law instead requires parties to submit such disputes to a court.
• Foster could sue for the amount, demand an accounting or use another lawful remedy.
• The privilege of recapture was intended for immediate recovery from an obvious wrongdoer, not for settling a genuine dispute concerning wages or payment.
• Because Foster had no privilege to use force, the physical seizure and struggle constituted assault and battery.

• The Rhode Island Supreme Court upheld the verdict for Kirby.
• Foster could not use force to recover the money because Kirby had originally obtained possession lawfully and retained it under a claim of right.
• The right of recapture is limited to cases involving a wrongful dispossession rather than a genuine dispute over entitlement.
• Foster was required to pursue legal remedies.
• His petition for a new trial was denied.