Goldmann, Foley and Drenk. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a jury verdict of no cause of action in a suit for damages arising out of an alleged assault and battery.
The incident from which this action arose occurred on February 28, 1957 in a gasoline service station in Buttzville, New Jersey. Plaintiff, a dairy farmer, was a member of the Tri-State Master Dairy Farmers Grand Guild. Defendant, also a dairy farmer, was not a member of this
guild. The guild members had been on a "strike" for three or four days prior to the date of the occurrence. The strike, which consisted in withholding the milk supply from the creameries in the area in order to obtain a higher price therefor, had been terminated by an injunctive order issued on February 28 prior to the time of the happening.
In the early morning of that day defendant received a telephone call from a creamery in Pine Brook, N.J., was advised that the strike had ended, and invited to deliver milk to the creamery. He then loaded his own supply of milk on a truck, picked up milk from five other farmers in the area, and accompanied by another farmer, started for Pine Brook at about 8:30 A.M. Prior to doing so he notified the State Police of his intended route in order that it might be patrolled, and arranged with Harry Yohe, the other farmer, to drive behind him in his car "just in case something should happen due to the * * * activities during the week." These "activities" included an incident in which defendant had been involved in Hackettstown three days previously when, while attempting to deliver milk, he had been intercepted and attacked by a group of striking guild members.
While proceeding westerly on route 46 from Hackettstown toward Buttzville, defendant's truck was passed by a passenger vehicle which plaintiff was driving in an easterly direction. Defendant, apprehensive of trouble, noticed that after the car had gone by, the driver turned it around and began to follow him. Defendant testified that because of the attack made on him in Hackettstown on February 25, he became fearful of his safety and accelerated the speed of his truck. Plaintiff said that he recognized defendant's vehicle as a milk truck and that he wanted to talk to the driver in the hope of persuading him to join the guild. Neither party knew the other.
While there are some deviations in detail, the facts concerning what happened thereafter were not in substantial dispute. After driving the truck at a high speed for about
a mile in an effort to avoid being overtaken, defendant drove into a gasoline service station. Plaintiff's car arrived there at about the same time. The occupants of both vehicles got out. Defendant had in his hand a steel wedge weighing four pounds. Plaintiff approached defendant; he said his purpose was to talk to him. Neither he nor his companions were armed with weapons of any kind. Defendant, as he backed toward the rear of the truck, called for the police and for help, and warned the men not to come any closer. Plaintiff continued to advance. Defendant had noticed that two of plaintiff's companions had gone around on the other side of the truck. In the words of the defendant:
"* * * I saw two go that way; and I didn't see them until they appeared on the right side of the truck, at the tail. I was six feet beyond the tail slightly behind the truck.
With that, Hagopian, not heeding any warning at all, continued and made a turn, and made a reach. And I struck because of the fact of the other two coming around; and the fear, I was going to get touched and I knowed they were going to do property damage."
Defendant further testified that he thought plaintiff had turned to reach for a rope to pull himself up on defendant's truck.
"* * * I swung and threw the wedge. That wedge struck him on the head as he started to rise up. And why or how, I don't know to this day yet, but I can see that wedge strike. The wedge glanced off and it came right back into my hand. I caught it, ...