Smile of the Day

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Thursday, November 3

Assault and batter

The case of the Pillsbury Doughboy v. John and Jane Dough
- Marcel Strigberger

After years of getting tickled in all those television commercials, the Pillsbury Doughboy finally had enough. He launched a lawsuit against the perpetrators and following is the judgement of the Honourable Mr. Justice Baker.

This is an action for assault and battery by the Pillsbury Doughboy against John and Jane Dough.

For many years the Pillsbury Doughboy, who I would describe as a chubby and jolly gentleman pastry chef, has been doing television commercials touting Pillsbury's baked goods.

The plaintiff testified that at the end of each broadcast the defendants, or one of them, would sneak up and poke him in the stomach with their index fingers. The plaintiff alleges that this has been going on for years and that he has suffered immense damages.

In the words of the plaintiff, "Can't a doughboy just come out and talk about apple turnovers without getting poked in the belly? I've had it up to here." (I find it significant that in describing the alleged poking, the plaintiff pointed to the area about one inch above his navel.)

The defendants initially denied the allegations altogether. But after being confronted with the videos of the commercials, they pleaded that the poking was really only a mere tickle. Counsel for the defendant in fact read a passage of the famous case of Will the Village Idiot v. Hubbard et al., decided by Lord Coke in London in 1643 and cited as 76 Soda Pop Reports 2nd. edition, page 132. This was an assault action by Will against a handful of townsfolk. His Lordship held as follows:
And how does the law stand if a party takes one of his digits and presses it into his neighbour's tummy? Thusly. If a villain takes his finger and pokes the stomach of an innocent victim intending to humiliate or injure him, this is no good. Nay, a case of assault and battery has been made out and the defendant shall pay with his purse. But if the intention is to transact a "mere tickle" then no action lies. This is the well established principle legal maxim of "de tickles non curat lex," or the law does not concern itself with tickles.
In support of this proposition the defendants presented a number of videos showing that after each poke in the commercials, the plaintiff giggles, making a "hee hee" sound.

It is true indeed that he does emit a "hee hee" sound. But does this constitute the act as trivial, or rather as an actionable tickle?

I have examined the evidence carefully and there is no doubt in my mind that it has crossed the "mere tickle" threshold.

The defendants then argue that in fact the plaintiff has condoned the poking all these years. John Dough suggest that how was he to know that the plaintiff didn't like it?

The plaintiff's position is that he told the defendants many times to keep their hands off his dough. He also admonished them not to joke about his rotund frame, adding that he especially did not appreciate being called "Michelin Man" off camera.

There is no doubt here that we have a clear case of assault and batter. I should say battery. I will therefore now assess damages.

Physically the damages do not appear to be too immense. It is true, however, that as a result of all the poking the plaintiff has developed in the upper abdomen what could almost be described as a second belly button. His family doctor, the eminent Dr. Sun, says, "If there were to be another one of these holes, the doughboy would bear a close resemblance to a bowling ball."

There was also evidence of emotional trauma. Psychiatric evidence was tendered by Dr. Maurice LeMuffin, a specialist in the areas of emotional trauma caused by being poked by index fingers in the belly. Dr. LeMuffin's credentials were quite impressive: he reeived his training in Paris at the Sorbonne and Maxim's.

The good doctor indicated that getting poked or excessively tickled in the belly can be very traumatic. He had studied the cases of hundreds of prisoners of war who had been interrogated by being so tickled by their captors.

LeMuffin testified that the traumatic effects are usually permanent. In fact, many victims even go through stages of denial but years later out of the blue and for no reason at all might suddenly emit a "hee hee."

The good doctor did admit in cross examination, however, that Pillsbury made good croissants.

I was not impressed with the evidence of the defence psychiatrist, Dr. Franz Jozef von Kaiser. Dr. von Kaiser dismissed the plaintiff's case as half-baked. He claimed that after reviewing the plaintiff's history, including the facts that the plaintiff failed grade four and that his mother hated broccoli, he was convinced that even had the defendants not poked him, the plaintiff would have suffered from this emotional condition in any event. In cross-examination, however, Dr. von Kaiser did concede that he was impressed with the plaintiff's crisp white chef's hat.

In assessing damages, I am mindful that the plaintiff's career choices are now limited. There are a couple of possibilities but notwithstanding the defence argument, I do not think the plaintiff should consider applying for the current opening of poster boy for Michelin Tires.

I allow damages of past lost wages of $76,613.54 and future lost income in the amount of $223,669.11 in accordance with Schedules A and B respectively of the report of Mr. Fred Ehrlich, the actuary, all of which I found very boring.

As for compensation for pain and suffering, I allow $2 million. I also award the plaintiff $1 million for punitive damages. This is to send a clear message from the court to all other potential culprits out there who may be tempted to go around and try to tickle doughboys. We can discuss the issue of legal costs after I return from having my coffee and freshly baked cinnamon roll.

Judgement accordingly.

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