This section contains the nature of the case and procedural background.

P and D are both dairy farmers. P is a guild member, and they were on strike. D is not a member. The strike had been terminated by an injunctive order issued on February 28, prior to the time of the happening between P and D. D, hearing of the end of the strike, arranged a delivery. D even notified state police of his route and also had another farmer drive behind him just in case there was trouble. This was because 3 days earlier, D had been intercepted and attacked by a group of striking guild members. While driving to the delivery location, D's truck was passed by a passenger vehicle driven by P. P noticed that after the car had gone by, the driver turned it around and began to follow him. Because of the attack made on him on February 25, D became fearful of his safety and accelerated the speed of his truck. P said that he recognized D'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. After driving the truck at a high speed in an effort to avoid being overtaken, D drove into a gasoline service station. P's car arrived, and the occupants of both vehicles got out. D had in his hand a steel wedge weighing four pounds. P approached D; he said his purpose was to talk to him. Neither he nor his companions were armed with weapons of any kind. D, 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. P continued to advance. D had noticed that two of P's companions had gone around on the other side of the truck. P not heeding any warning at all, continued and made a turn, and made a reach. D 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.' D thought P had turned to reach for a rope to pull himself up on D's truck. D threw the wedge. That wedge struck D on the head and arrived back in D’s hands. D then charged the fellows on the right side, and they dispersed. P was about four to six feet away when D threw the wedge at him; P's back was turned to D when it was thrown. P sued D for assault and battery. D pleaded self-defense. The jury was never instructed that the burden of proving the facts giving rise to the privilege was at all times upon D.The jury returned a verdict of no cause, and P appealed.

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