Unusual, Strange & Funny Judicial Decisions and Opinions logo Justice Minturn needed a warmup for In re Kirk, aka The Bootlegger, the Souphead and Justice Minturn's Poetic Prose.

Same court (Supreme Court of New Jersey), same month (October) one year earlier (1924). This time, John Tricoli was suing Donato and Raffale Centalanza in damages for assault and battery. Tricoli won at the first level, including exemplary damages. The the defendant-brothers appealed.

The appeal came before a bench of three judges, Trenchard, Lloyd and James F. Minturn in May of 1924.

The facts seemed straight-forward. Montclair, New Jersey, circa 1924. The Centalanza brothers had fought John Tricoli; two against one. Tricoli lost. He sought damages as he was badly hurt.

Judgment was reserved until October 8, 1924, with Justice Minturn signing off on the opinion of the whole court.

"Run away, Maestro Juan, I am going to kill you."

Such was the ferocious threat that disturbed the atmosphere, not of prehistoric Mexico, where upon desolate plains the savage coyote still bays at the moon, nor yet of classic Verona, where dramatic memories of the houses of Montague and Capulet still linger to entrance the romantic wayfarer, but from the undiluted atmosphere of Bloomfield Avenue, where it winds its attractive course through the prim rococo shades of modern Montclair, which upon the day succeeding Christmas in 1923 sat like Roma immortalis upon its seven hills, and from its throne of beauty contemplated with serene satisfaction the peace and tranquillity of the modern world.

The Maestro, however, with true chivalric disdain, refused to retreat, but determined at all hazards, like Horatius, to hold the bridge, or rather the stoop, upon which he stood. Like a true Roman, inoculated with the maximum percentage of American patriotism, he turned defiantly to the oncoming house of Centalanza, and proclaimed in the bellicose language of the day:

"You too son of a gun."

In the days of the Montague and Capulet, aristocratic rapiers and swords defended the honor of their respective houses. But in this day of popular progress the Maestro and the Centalanza sought only the plebeian defense of fists and a shovel. As a result of a triangular contest, the physician testified that the Maestro was battered ‘from head to buttocks'- a distribution of punishment, it may be observed, which, while it may not be entirely aesthetic in its selection of a locum tenens, was to say the least equitably administered and distributed. Indeed, so much was the Maestro battered that his daily toil lost him for 12 days, and the trial court estimated that this loss, together with his pain and suffering, and the aggravation of the trespass, entitled him to receive from the house of Centalanza.

The latter, however, has appealed, and alleges that the Maestro proved no substantial cause of action against them. But the learned trial court, upon this contested state of facts, concluded, and we think properly, that there was an issue of fact thus presented, since the suit was for assault and battery in the nature of trespass vi et armis (violently). But the defendants Centalanza insists that two distinct encounters took place, one by both defendants, and the other by one only, and they ask: how can such a physical contretemps be admeasured, so as to impose upon each member of the house of Centalanza his fair share of compensation for his physical contribution to the mêlée? The inquiry possesses its latent difficulties, but, since it is an admitted rule of law that the court will not distribute the damages between tort-feasors, upon any theory of equitable admeasurement, the House of Centalanza obviously must bear the entire loss, without seeking a partition thereof. Ex turpi causa oritur non actio.

Indeed, it would prove to be a rare feat of judicial acumen, were the court to attempt to give due credit to Donato Centalanza for the prowess he displayed in his fistic endeavors, and to assess to Raffale Centalanza his mead of financial contribution for the dexterity with which he wielded his handy implement of excavation. It is doubtful, even in these days of the mystic prize ring, whether such a metaphysical test may be included among the accredited mental accomplishments of a quasi militant judiciary, which, while it occasionally indulges in a caustic punch, still strenuously endeavors to maintain the proverbial respectability and regal poise of its ancestral prototype. In such a situation we are not inclined to impose this extraordinary and novel field of jurisdiction upon our inferior courts. The occurrence of trespass vi et armis confers upon the trial court the right to assess exemplary damages as smart money, and this the trial court properly did under the circumstances of the case.

It is contended, however, that the actual damage sustained by the Maestro was inconsequential, and that the rule, De minimis non curat lex applies. It must be obvious, however, that damage which to the attending physician seemed to penetrate the Maestro ‘from head to buttocks' may seem trivial to us as noncombatants, but to the Maestro it manifestly seemed otherwise, and doubtless punctured his corpus, as well as his sensivilities. Indeed, he well might declare in the language of the gallant Mercutio of Verona, concerning the extent of his wound:

"It is not as wide as a church door, or as deep as a well, but 'twill serve."

The judgment will be affirmed.


  • Tricoli v. Centalanza, 1924 USFJDO 1; also at 126 A. 214