Even though there be an act, the latter may be too slight to justify apprehension,15 and it must indicate an intent to do bodily injury.1

16

"Whether from Malice or Wantonness"

17

These words call attention to the distinction, already pointed out, between fright or mental suffering when caused by negligence and when resulting from a willful act.18 It will be remembered that for the first, when standing alone, many of the courts deny recovery, though if the act be willful a contrary result is reached.19 Hence plaintiff, if an assault is proved, is at least entitled to nominal damages for the injury to his peace of mind, and in aggravated cases the jury may add exemplary damages.20 Under Circumstances Denoting an Intention and Present Ability to Do Violence

If the accompanying circumstances show that physical hurt is not to be apprehended, there is no assault. While mere words are not of themselves sufficient, the language uttered may be considered for the purpose of explaining

15 Where the complaint alleged that defendant's conductor had assaulted plaintiff "by grasping her by the arm and shoulders, by winking and smiling at her," held that the winking alone did not constitute an assault. Birmingham Ry., Light & Power Co. v. Parker, 161 Ala. 248, 50 South. 55.

16 Thus no assault is established where a landlord, upon his tenant's refusal to quit, burst open an inner door, removed doors and windows, brought a bloodhound into the house, made a great noise for several days, and refused to permit any food to be furnished to the tenant from the outside. Stearns v. Sampson, 59 Me. 568, 8 Am. Rep. 442. Though, where removal was prevented by illness, it might constitute a trespass. Preiser v. Wielandt, 48 App. Div. 569, 62 N. Y. Supp. 890.

17 See supra, p. 86.

18 See note to Huston v. Freemansburg, 3 L. R. A. (N. S.) 49, and to Chittick v. Philadelphia Rapid Transit Co., 22 L. R. A. (N. S.) 1073.

19 Prince v. Ridge, 32 Misc. Rep. 666, 66 N. Y. Supp. 454; Preiser v. Wielandt, 48 App. Div. 569, 62 N. Y. Supp. 890; Watson v. Dilts, 116 Iowa, 249, 89 N. W. 1068, 57 L. R. A. 559, 93 Am. St. Rep. 239; Wilkinson v. Downton, [1897] 2 Q. B. 57.

20 BEACH v. HANCOCK, 27 N. H. 223, 59 Am. Dec. 373, Chapin Cas. Torts, 125.

" 22

or qualifying the threatening act. Thus no sense of fear was excited where defendant, though laying his hand on a sword, yet said, "If it were not assize time, I would not take such language," 21 or while raising a whip and shaking it said, "Were you not an old man, I would knock you down." So the violence must be offered "within such a distance as that harm might ensue if the party was not prevented." 28 Thus a gun or pistol must be presented within shooting distance. It is not required, however, that there be an actual ability to inflict violence. It will be sufficient that it be reasonably apparent, since the apprehension of damage may be the same in both cases. Pointing an unloaded firearm at one who does not know it to be unloaded impairs the latter's sense of security quite as much as though the weapon had a cartridge in the breach,25 and although some courts have held this not to be criminal, though admittedly a civil assault,26 the distinction seems questionable. "It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material, but what his conduct and the attending circumstances denote at the time to the party assaulted." 27

21 TUBERVILLE v. SAVAGE, 1 Mod. 3, 86 Eng. Repr. 684, Chapin Cas. Torts, 126.

22 State v. Crow, 23 N. C. 375. To the same effect, Blake v. Barnard, 9 C. & P. 626, 38 E. C. L. 365.

23 People v. Lilley, 43 Mich. 521, 525, 5 N. W. 9S2.

24 Tarver v. State, 43 Ala. 354, 356.

25 BEACH v. HANCOCK, 27 N. H. 223, 59 Am. Dec. 373, Chapin Cas. Torts, 125.

26 Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; State v. Godfrey, 17 Or. 300, 20 Pac. 625, 11 Am. St. Rep. 830.

27 Commonwealth v. White, 110 Mass. 407, 409, per Wells, J. To the same effect, State v. Shepard, 10 Iowa, 126; State v. Smith, 2 Humph. (Tenn.) 457; and see supra, p. 6.

BATTERY

62. "Battery is an unlawful touching the person of another by the aggressor himself or any other substance put in motion by him." 28

A battery is a consummated assault. Though the force be but slight, the tort may be none the less complete,29 since it may have constituted a gross indignity.30 Still, where the physical impact is very slight, motive may be introduced. Therefore it is no battery to touch another in discourse,31 or merely to attract attention,32 or to persuade.33

The term "person" has received a liberal interpretation, and includes articles which at the time are in reasonably close association with the body itself. Thus, snatching a paper from another's hands is a battery; so is striking a horse hitched to a carriage in which plaintiff is riding,35

28 Kirland v. State, 43 Ind. 146, 153, 13 Am. Rep. 386, per Buskirk, J.

29 "A battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person." Sweeden v. State, 19 Ark. 205, 213.

30 E. g., spitting in the face. Alcorn v. Mitchell, 63 Ill. 553 (verdict for $1,000 sustained); Draper v. Baker, 61 Wis. 450, 21 N. W. 527, 50 Am. Rep. 143 (verdict for $1,200 sustained).

31 TUBERVILLE v. SAVAGE, 1 Mod. 3, Chapin Cas. Torts, 126. 32 Coward v. Baddeley, 4 H. & N. 478, 5 Jur. (N. S.) 414, 28 L. J. Exch. 260, 7 Wkly. Rep. 466.

33 State v. Hemphill, 162 N. C. 632, 78 S. E. 167, 45 L. R. A. (N. S.) 455. And see Cole v. Turner, 6 Mod. 149, where Holt, C. J., said: "First, that the least touching of another in anger is a battery. Secondly, if two or more meet in a narrow passage and without any violence or design of harm, the one touches the other gently it will be no battery. Thirdly, if any of them use violence against the other to force his way in a rude, inordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt will be a battery."

34 Dyk v. De Young, 35 Ill. App. 138.

35 Clark v. Downing, 55 Vt. 259, 45 Am. Rep. 612. And see De Marentille v. Oliver, 2 N. J. Law, 379.

CHAP.TORTS-17

37

36

driving against a vehicle occupied by plaintiff, or striking a rail against which he is leaning. Going a step further, it is unnecessary that there should be a physical touching by the aggressor's person, since the wrong may be accomplished by means of an agency put in motion by him, as where an object is thrown at,38 or a liquid poured over, plaintiff, or he is run down by a bicycle. Nor need the effect be coincident with the act, since it is a battery if one delivers to another to be eaten an article which he is aware contains a concealed foreign substance which upon being innocently swallowed causes injury. Deception is here. equivalent to force.42

39

40

DEFENSES

63. Among the defenses which may be interposed to an assault or battery are―

(a) Defense of person.

(b) Defense of property.

(c) Recaption of property.

(d) Enforcement of discipline, regulations, and order.

(a) Defense of Person Attacked

Since the loss or damage of the party suffering was deemed the primary subject of consideration, the early common law refused to recognize a plea of self-defense to an action brought by the aggressor.43 For the crime a

36 Hopper v. Reeve, 1 Moore, C. P. 407, 7 Taunt. 698, 2 E. C. L. 554.

37 Kendall v. Drake, 67 N. H. 592, 30 Atl. 524.

38 Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81; Bullock v. Babcock, 3 Wend. (N. Y.) 391.

39 Murdock v. State, 65 Ala. 520.

40 Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76. Or by an automobile. Schneider v. State, 181 Ind. 218, 104 N. E. 69.

41 Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350. Cf. Carr v. State, 135 Ind. 1, 34 N. E. 533, 20 L. R. A. 863, 41 Am. St. Rep. 408. 42 Cooley on Torts (3d Ed.) 284.

43 Anon. Y. B. 21 & 22 Edw. I, 586; Anon., Y. B. 12 Edw. II, fol.

44

pardon might be issued by the king under the statute of Gloucester, but this did not affect a civil action. Such an absurdity could not endure, and in 1400 we find the right of self-defense admitted. It is now thoroughly established that a belief which a reasonable man would entertain of impending bodily harm will justify the employment of that degree of force which is apparently required for purposes of protection. Upon analyzing this statement, the following points appear.

First. It is sufficient that there is an actual belief of danger. Its existence need not be shown. If, for instance, one presents a revolver at another under circumstances indicating an intent immediately to shoot, he cannot require the latter, before taking measures to protect himself, to determine at his peril whether the weapon was loaded or unloaded, or whether it was presented in jest or earnest.**

Second. The belief must be one which a reasonable man would have entertained under similar circumstances. For, though the defendant must in fact have supposed that the peril existed, the justification for his belief must be tested. by the ordinary standard, and not by that of the overcautious or the over-bold.47

48

Third. The harm must be impending. One cannot wait until the danger has passed, and the necessity for selfdefense is over, and then proceed to take revenge. Nor since force is permitted for purposes of protection, and not for punishment, will the law consider opprobrious words a justification. Still they should logically be ad

44 6 Edw. I, ch. 9.

49

45 Chapleyn of Greye's Inn v. pl. 40.

Y. B. 2 Henry IV, fol. 8,

46 See New Orleans & N. E. R. Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, 35 L. Ed. 919.

47 Courvoisier v. Raymond, 23 Colo. 113, 47 Pac. 284; Zell v. Dunaway, 115 Md. 1, 80 Atl. 215; Beck v. Minneapolis Union Ry. Co., 95 Minn. 73, 103 N. W. 746; Palmer v. Smith, 147 Wis. 70, 132 N. W. 614.

4s Ogden v. Claycomb, 52 Ill. 365; Hetrick v. Crouch, 141 Mich. 649, 105 N. W. 131.

49 Norris v. Casel, 90 Ind. 143; Murray v. Boyne, 42 Mo. 472;