Introduction to Tort Law
Professor Chiesa
Readings for June 11
COHEN
v.
PETTY.
GRONER, Associate Justice.
Plaintiff's declaration alleged that on December 14, 1930, she was riding as a guest in
defendant's automobile; that defendant failed to exercise reasonable care in its operation,
and drove it at a reckless and excessive rate of speed so that he lost control of the car and
propelled it off the road against an embankment on the side of the road, as the result of
which plaintiff received permanent injuries. The trial judge gave binding instruction, and
the plaintiff appeals.
[1] There were four eyewitnesses to the accident, namely, plaintiff and her sister on
the one side, and defendant and his wife on the other. All four were occupants of the car.
Defendant was driving the car, and his wife was sitting beside him. Plaintiff and her sister
were in the rear seat. Plaintiff is a retired school teacher, and defendant is a real estate
agent who attended to her property and collection of her rents. They had known one
another for a number of years, and plaintiff and her sister frequently drove out in the
country with defendant and his wife. On the occasion of the injury, defendant called at
plaintiff's house pursuant to an engagement, and plaintiff and her sister got into the
automobile, which defendant then drove to his own house, where his wife got in, and the
party proceeded through Washington to Silver**821 *188 Spring, and thence out the
Colesville Pike. After passing the Country Club, and when somewhere near Four Corners
and five or six miles from Silver Spring, the automobile suddenly swerved out of the
road, hit the abutment of a culvert, and ran into the bank, throwing plaintiff and her sister
through the roof of the car onto the ground.
Plaintiff's sister estimated the speed of the car just before the accident somewhere
between thirty-five and forty miles an hour, and plaintiff herself, who had never driven a
car, testified she thought it was nearer forty-five. The place of the accident was just
beyond a long and gradual curve in the road. Plaintiff testified that just before the
accident, perhaps a minute, she heard the defendant, who, as we have said, was driving
the car, exclaim to his wife, ‘I feel sick,’ and a moment later heard his wife exclaim in a
frightened voice to her husband, ‘Oh, John, what is the matter?’ Immediately thereafter
the car left the road and the crash occurred. Her sister, who testified, could not remember
anything that occurred on the ride except that, at the time they passed the Country Club,
the car was being driven about thirty-five or forty miles an hour and that the occupants of
the car were engaged in a general conversation. The road was of concrete and was wide.
Plaintiff, when she heard defendant's wife exclaim, ‘What is the matter?’ instead of
looking at the driver of the car, says she continued to look down the road, and as a result
she did not see and does not know what subsequently occurred, except that there was a
collision with the embankment.
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Professor Chiesa
Defendant's evidence as to what occurred just before the car left the road is positive and
wholly uncontradicted. His wife, who was sitting beside him, states that they were
driving along the road at a moderate rate of speed when all of a sudden defendant said,
‘Oh, Tree, I feel sick’-defendant's wife's name is Theresa, and he calls her Tree. His wife
looked over, and defendant had fainted. ‘His head had fallen back and his hand had left
the wheel, and I immediately took hold of the wheel with both hands, and then I do not
remember anything else until I waked up on the road in a strange automobile.’ The
witness further testified that her husband's eyes were closed when she looked, and that his
fainting and the collision occurred in quick sequence to his previous statement, ‘Oh, Tree,
I feel so sick.’ The defendant himself testified that he had fainted just before the crash,
that he had never fainted before, and that so far as he knew he was in good health, that on
the day in question he had had breakfast late, and had had no luncheon, but that he was
not feeling badly until the moment before the illness and the fainting occurred. He
explained the incident as follows: ‘I was going along, just casually along, and I said ‘My,
Tree, I feel awfully sick,’ and with that I went back like that [indicating]. I just remember
my hands getting away from the wheel. I did not have time to think of any danger or
anything else. I just fainted out and passed out.'
The other testimony, that of a woman who arrived shortly after the accident and
conveyed plaintiff and her sister to the hospital, and that of a physician who testified
generally with regard to fainting spells, is not material.
The sole question is whether, under the circumstances we have narrated, the trial court
was justified in taking the case from the jury. We think its action was in all respects
correct.
[2] It is undoubtedly the law that one who is suddenly stricken by an illness, which
he had no reason to anticipate, while driving an automobile, which renders it impossible
for him to control the car, is not chargeable with negligence. Armstrong v. Cook, 250
Mich. 180, 229 N. W. 433; Slattery v. Haley, Dom. Law Rep., 1923(3), p. 156.
In the present case the positive evidence is all to the effect that defendant did not know
and had no reason to think he would be subject to an attack such as overcame him. Hence
negligence cannot be predicated in this case upon defendant's recklessness in driving an
automobile when he knew or should have known of the possibility of an accident from
such an event as occurred.
As the plaintiff wholly failed to show any actionable negligence prior to the time the
car left the road, or causing or contributing to that occurrence, and as the defendant's
positive and uncontradicted evidence shows that the loss of control was due to
defendant's sudden illness, it follows the action of the lower court was right. Even if
plaintiff's own evidence tended more strongly than it does to imply some act of
negligence, it would be insufficient to sustain a verdict and judgment upon proof such as
the defendant offered here of undisputed facts, for in such a case the inference must yield
to uncontradicted evidence of actual events.
Affirmed.
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Introduction to Tort Law
Professor Chiesa
HAMMONTREE
v.
JENNER
LILLIE, Associate Justice.
Plaintiff Maxine Hammontree and her husband sued defendant for personal injuries and
property damage arising out of an automobile *530 accident. The cause was tried to a
jury. Plaintiffs appeal from judgment entered on a jury verdict returned against them and
in favor of the defendant.
The evidence shows that on the afternoon of April 25, 1967, defendant was driving his
1959 Chevrolet home from work; at the same time plaintiff Maxine Hammontree was
working in a bicycle shop owned and operated by her and her husband; without warning
defendant's car crashed through the wall of the shop, struck Maxine and caused personal
injuries and damages to the shop.
Defendant claimed he became unconscious during an epileptic seizure losing control of
his car. He did not recall the accident but his last recollection before it, was leaving a stop
light after his last stop, and his first recollection after the accident was being taken out of
his car in plaintiffs' shop. Defendant testified he has a medical history of epilepsy and
knows of no other reason for his loss of consciousness except an epileptic seizure; prior
to 1952 he had been examined by several neurologists whose conclusion was that the
condition could be controlled and who placed him on medication; in 1952 he suffered a
seizure while fishing; several days later he went to Dr. Benson Hyatt who diagnosed his
condition as petit mal seizure and kept him on the same medication; thereafter he saw Dr.
Hyatt every six months and then on a yearly basis several years prior to 1967; in 1953 he
had another seizure, was told he was an epileptic and continued his medication; in 1954
Dr. Kershner prescribed dilantin and in 1955 Dr. Hyatt prescribed phelantin; from 1955
until the accident occurred (1967) defendant had used phelantin on a regular basis which
controlled his condition; defendant has continued to take medication as prescribed by his
physician and has done everything his doctors told him to do to avoid a seizure; he had
no inkling or warning that he was about to have a seizure prior to the occurrence of the
accident.
In 1955 or 1956 the department of motor vehicles was advised that defendant was an
epileptic and placed him on probation under which every six months he had to report to
the doctor who was required to advise it in writing of defendant's condition. In 1960 his
probation was changed to a once-a-year report.
Dr. Hyatt testified that during the times he saw defendant, and according to his history,
defendant ‘was doing normally’ and that he continued to take phelantin; that ‘(t)he
purpose of the (phelantin) would be to react on the nervous system in such a way that
where, without the medication, I would say to raise the threshold so that he would not be
as subject to these episodes without *531 the medication, so as not to have the seizures.
He would not be having the seizures with the medication as he would without the
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Introduction to Tort Law
Professor Chiesa
medication compared to taking medication’; in a seizure it would be impossible for a
person to drive and control an automobile; he believed it was safe for defendant to drive.
**741 Appellants' contentions that the trial court erred in refusing to grant their motion
for summary judgment on the issue of liability and their motion for directed verdict on
the pleadings and counsel's opening argument are answered by the disposition of their
third claim that the trial court committed prejudicial error in refusing to give their jury
instruction on absolute liability.FN1
[1] Under the present state of the law found in appellate authorities beginning with
Waters v. Pacific Coast Dairy, Inc., 55 Cal.App.2d 789, 791-793, 131 P.2d 588 (driver
rendered unconscious from sharp pain in left arm and shoulder) through Ford v. Carew &
English, 89 Cal.App.2d 199, 203-204, 200 P.2d 828 (fainting spells from strained heart
muscles), Zabunoff v. Walker, 192 Cal.App.2d 8, 11, 13 Cal.Rptr. 463 (sudden sneeze),
and Tannyhill v. Pacific Motor Trans. Co., 227 Cal.App.2d 512, 520, 38 Cal.Rptr. 774
(heart attack), the trial judge properly refused the instruction. The foregoing cases
generally hold that liability of a driver, suddenly stricken by an illness rendering him
unconscious, for injury resulting from an accident occurring during that time rests on
principles of negligence. However, herein during the trial plaintiffs withdrew their claim
of negligence and, after both parties rested and before jury argument, objected to the
giving of any instructions on negligence electing to stand solely on the theory of absolute
liability. The objection was overruled and the court refused plaintiffs' requested
instruction after which plaintiffs waived both opening and closing jury arguments.
Defendant argued the cause to the jury after which the judge read a series of negligence
instructions and, on his own motion, BAJI 4.02 (res ipsa loquitur).
Appellants seek to have this court override the established law of this state which is
dispositive of the issue before us as outmoded in today's social and economic structure,
particularly in the light of the now recognized principles imposing liability upon the
manufacturer, retailer and all distributive and vending elements and activities which bring
a product to the consumer to his injury, on the basis of strict liability in tort expressed
first in Justice Traynor's concurring opinion in *532 Escola v. Coca Cola Bottling Co., 24
Cal.2d 453, 461-468, 150 P.2d 436, and then in Greenman v. Yuba Power Products, Inc.,
59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897; Vandermark v. Ford Motor Co., 61 Cal.2d
256, 37 Cal.Rptr. 896, 391 P.2d 168, and Elmore v. American Motors Corp., 70 Cal.2d
578, 75 Cal.Rptr. 652, 451 P.2d 84. These authorities hold that ‘A manufacturer (or
retailer) is strictly lible in tort when an article he places on the market, knowing that it is
to be used without inspection for defects, proves to have a defect that causes injury to a
human being.’ (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 27 Cal.Rptr.
697, 700, 377 P.2d 897, 900; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 260-261, 37
Cal.Rptr. 896, 391 P.2d 168.) Drawing a parallel with these products liability cases,
appellants argue, with some degree of logic, that only the driver affected by a physical
condition which could suddenly render him unconscious and who is aware of that
condition can anticipate the hazards and foresee the dangers involved in his operation of a
motor vehicle, and that the liability of those who by reason of seizure or heart failure or
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Introduction to Tort Law
Professor Chiesa
some other physical condition lose the ability to safely operate and control a motor
vehicle resulting in injury to an innocent person should be predicated on strict liability.
**742 [2] We decline to superimpose the absolute liability of products liability cases
drivers under the circumstances here. The theory on which those cases are predicated is
that manufacturers, retailers and distributors of products are engaged in the business of
distributing goods to the public and are an integral part of the over-all producing and
marketing enterprise that should bear the cost of injuries from defective parts.
(Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168;
Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d
897.) This policy hardly applies here and it is not enough to simply say, as do appellants,
that the insurance carriers should be the ones to bear the cost of injuries to innocent
victims on a strict liability basis. In Maloney v. Rath, 69 Cal.2d 442, 71 Cal.Rptr. 897,
445 P.2d 513, followed by Clark v. Dziabas 69 Cal.2d 449, 71 Cal.Rptr. 901, 445 P.2d
517, appellant urged that defendant's violation of a safety provision (defective brakes) of
the Vehicle Code makes the violator strictly liable for damages caused by the violation.
While reversing the judgment for defendant upon another ground, the California Supreme
Court refused to apply the doctrine of strict liability to automobile drivers. The situation
involved two users of the highway but the problems of fixing responsibility under a
system of strict liability are as complicated in the instant case as those in Maloney v. Rath
(p. 447, 71 Cal.Rptr. 897, 445 P.2d 513), and could only create uncertainty in the area of
its concern. As stated in Maloney, at page 446, 71 Cal.Rptr. at page 899, 445 P.2d at page
515: ‘To invoke a rule of strict liability on users of the streets and highways, however,
without also establishing in substantial detail how the *533 new rule should operate
would only contribute confusion to the automobile accident problem. Settlement and
claims adjustment procedures would become chaotic until the new rules were worked out
on a case-by-case basis, and the hardships of delayed compensation would be seriously
intensified. Only the Legislature, if it deems it wise to do so, can avoid such difficulties
by enacting a comprehensive plan for the compensation of automobile accident victims in
place of or in addition to the law of negligence.'
The instruction tendered by appellants was properly refused for still another reason.
Even assuming the merit of appellants' position under the facts of this case in which
defendant knew he had a history of epilepsy, previously had suffered seizures and at the
time of the accident was attempting to control the condition by medication, the
instruction does not except from its ambit the driver who suddenly is stricken by an
illness or physical condition which he had no reason whatever to anticipate and of which
he had no prior knowledge.
The judgment is affirmed.
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Introduction to Tort Law
Professor Chiesa
SPANO
v.
PERINI CORPORATION
FULD, Chief Judge.
The principal question posed on this appeal is whether a person who has sustained
property damage caused by blasting on nearby property can maintain an action for
damages without a showing that the blaster was negligent. Since 1893, when this court
decided the case of Booth v. Rome, W. & O.T.R.R. Co., 140 N.Y. 267, 35 N.E. 592, 24
L.R.A. 105, it has been the law of this State that proof of negligence was required unless
the blast was accompanied by an actual physical invasion of the damaged property-for
example, by rocks or other material being cast upon the premises. We are now asked to
reconsider that rule.
The plaintiff Spano is the owner of a garage in Brooklyn which was wrecked by a blast
occurring on November 27, 1962. *14 There was then in that garage, for repairs, an
automobile owned by the plaintiff Davis which he also claims was damaged by the
blasting. Each of the plaintiffs***529 brought suit against the two defendants who, as
joint venturers, were engaged in constructing a tunnel in the vicinity pursuant to a
contract with the City of New York.[FN1] The two cases were tried together, without a
jury, in the Civil Court of the City of New York, New York County, and judgments were
rendered in favor of the plaintiffs. The judgments were reversed by the Appellate Term
and the Appellate Division affirmed that order, granting leave to appeal to this court.
On appeal, a divided Appellate Term reversed that judgment, declaring that it deemed
itself concluded by the established rule in this State requiring proof of negligence. Justice
Markowitz, *15 who dissented, urged that the Booth case should no longer be considered
controlling precedent.
The Appellate Division affirmed; it called attention to a decision in the Third
Department (Thomas v. Hendrickson Bros., 30 A.D.2d 730, 731, 291 N.Y.S.2d 57, 59),
in which the court observed that ‘(i)f Booth is to be overruled, ‘the announcement thereof
should come from the authoritative source and not in the form of interpretation or
prediction by an intermediate appellate court‘‘.
[1] In our view, the time has come for this court to make that ‘announcement’ and
declare that one who engages in blasting must assume ***530 responsibility, and be
liable without fault, for any injury he causes to neighboring property.
The concept of absolute liability in blasting cases is hardly a novel one. The
overwhelming majority of American jurisdictions have adopted such a rule. (See Prosser,
Torts (2d ed.), s 59, p. 336; 3 Restatement, Torts, ss 519, 520, comment E; Ann., 20
A.L.R.2d 1372.)[FN2] Indeed, this court itself, several years ago, noted that a change in
our law would ‘conform to the more widely (indeed almost universally) approved
doctrine that a blaster is absolutely liable for any damages he causes, with or without
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Introduction to Tort Law
Professor Chiesa
trespass'. ( Schlansky v. Augustus V. Riegel, Inc., 9 N.Y.2d 493, 496, 215 N.Y.S.2d 52,
53, 174 N.E.2d 730, 731.)
We need not rely solely however upon out-of-state decisions in order to attain our
result. Not only has the rationale of the Booth case (140 N.Y. 267, 35 N.E. 592, supra)
been overwhelmingly rejected elsewhere but it appears to be fundamentally inconsistent
with earlier cases in our own court which had held, long before Booth was decided, that a
party was absolutely liable for damages to neighboring property caused by explosions.
(See, e.g., Hay v. Cohoes Co., 2 N.Y. 159; Heeg v. Licht, 80 N.Y. 579.) In the Hay case
(2 N.Y. 159, Supra), for example, the defendant was engaged in blasting an excavation
for a canal and the force of the blasts caused large quantities of earth and stones to be
thrown against the plaintiff's house, knocking down his stoop *16 and part of his
chimney. The court held the defendant Absolutely liable for the damage caused, stating
(2 N.Y., at pp. 160-161):
‘It is an elementary principal in reference to private rights, that every individual is
entitled to the undisturbed possession**34 and lawful enjoyment of his own property.
The mode of enjoyment is necessarily limited by the rights of others-otherwise it might
be made destructive of their rights altogether. Hence the maxim Sic utere tuo, &c. The
defendants had the right to dig the canal. The plaintiff the right to the undisturbed
possession of his property. If these rights conflict, the former must yield to the latter, as
the more important of the two, since, upon grounds of public policy, it is better that one
man should surrender a particular use of his land, than that another should be deprived of
the beneficial use of his property altogether, which might be the consequence if the
privilege of the former should be wholly unrestricted. The case before us illustrates this
principle. For if the defendants in excavating their canal, in itself a lawful use ***531 of
their land, could, in the manner mentioned by the witnesses, demolish the stoop of the
plaintiff with impunity, they might, for the same purpose, on the exercise of reasonable
care, demolish his house, and thus deprive him of all use of his property.’
Although the court in Booth drew a distinction between a situation-such as was
presented in the Hay case-where there was ‘a physical invasion’ or, or trespass on, the
plaintiff's property and one in which the damage was caused by ‘setting the air in motion,
or in some other unexplained way’ (140 N.Y., at p. 596, 35 N.E., at 279, 280), it is clear
that the court, in the earlier cases, was not concerned with the particular manner by which
the damage was caused but by the simple fact that any explosion in a built-up area was
likely to cause damage. Thus, in Heeg v. Licht, 80 N.Y. 579, Supra, the court held that
there should be absolute liability where the damage was caused by the accidental
explosion of stored gunpowder, even in the absence of a physical trespass (p. 581):
‘The defendant had erected a building and stored materials therein, which form their
character were *17 liable to and actually did explode, causing injury to the plaintiff. The
fact that the explosion took place tends to establish that the magazine was dangerous and
liable to cause damage to the property of persons residing in the vicinity. * * * The fact
that the magazine was liable to such a contingency, which could not be guarded against
or averted by the greatest degree of care and vigilance, evinces its dangerous character, *
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Introduction to Tort Law
Professor Chiesa
* * In such a case, the rule which exonerates a party engaged in a lawful business, when
free from negligence, has no application.’
Such reasoning should, we venture, have led to the conclusion that the Intentional
setting off of explosives-that is, blasting-in an area in which it was likely to cause harm to
neighboring property similarly results in absolute liability. However, the court in the
Booth case rejected such an extension of the rule for the reason that ‘(t)o exclude the
defendant from blasting to adapt its lot to the contemplated uses, at the instance of the
plaintiff, would not be a compromise between conflicting rights, but an extinguishment of
the right of the one for the benefit of the other’ (140 N.Y., at p. 281, 35 N.E., at p. 596).
The court expanded on this by stating, ‘This sacrifice, we think, the law does not exact.
Public policy is sustained by the building up of towns and cities and the improvement of
property. Any unnecessary restraint on freedom of action of a property owner hinders
this.’
This rationale cannot withstand analysis. The plaintiff in Booth was not seeking, as the
court implied, to ‘exclude the defendant from blasting’ and thus prevent desirable
improvements to the latter's property. ***532 Rather, he was merely seeking
compensation for the damage which was inflicted upon his own property as a result of
that blasting. The question, in other words, was not Whether it was lawful or proper to
engage in blasting but Who should bear the cost of any resulting damage-the person who
engaged in the dangerous activity or the innocent neighbor injured thereby. Viewed in
such a light, it clearly appears **35 that Booth was wrongly decided and should be
forthrightly overruled.
In more recent cases, our court has already gone far toward mitigating the harsh effect
of the rule laid down in the Booth case. Thus, we have held that negligence can properly
be *18 inferred from the mere fact that a blast has caused extensive damage, even where
the plaintiff is unable to show ‘the method of blasting or the strength of the charges or the
character of the soil or rock.’ (Schlansky v. Augustus V. Riegel, Inc., 9 N.Y.2d 493, 497,
215 N.Y.S.2d 52, 54, 174 N.E.2d 730, 732, Supra; see, also, Brown v. Rockefeller
Center, 289 N.Y. 729, 46 N.E.2d 348.) But, even under this liberal interpretation of
Booth, it would still remain possible for a defendant who engages in blasting operationswhich he realizes are likely to cause injury-to avoid liability by showing that he exercised
reasonable care. Since blasting involves a substantial risk of harm no matter the degree of
care exercised, we perceive no reason for ever permitting a person who engaged in such
an activity to impose this risk upon nearby persons or property without assuming
responsibility therefor.
Indeed, the defendants devote but brief argument in defense of the Booth rule. The
principal thrust of their argument is directed not to the requisite standard of care to be
used but, rather, to the sufficiency of the plaintiffs' pleadings and the proof adduced on
the issue of causation.[FN3]
FN3 All parties-plaintiffs and defendants-also address themselves at length to a
discussion of the plaintiffs' rights under the defendants' contract with the city. Although,
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Professor Chiesa
in the view we have taken, it is unnecessary to consider this question, we would merely
note that the clause relied upon by the plaintiffs appears to be nothing more than a
promise to hold the city harmless for any liability incurred by the defendants. It was
clearly not intended to have any effect on the nature of the defendants' liability or to
create rights in third persons.
[2] As to the sufficiency of the pleadings, we need but point out that both Spano's
and Davis's complaints alleged that the defendants engaged in blasting operations which
resulted in damage to their respective property. Thus, they contained adequate ‘notice of
the transactions * * * intended to be proved and the material elements of (the) cause of
action’ (CPLR 3013). The fact that, in Davis's case, these allegations were subsumed in a
cause of action for negligence is immaterial, since the inclusion of unnecessary additional
allegations does not affect ***533 the sufficiency of a complaint. (See, e.g., Rager v.
McCloskey, 305 N.Y. 75, 80, 111 N.E.2d 214, 217; Abbey v. Wheeler, 170 N.Y. 122,
127, 62 N.E. 1074, 1076.)
[3] [4] There remains, then, only the matter of proof on the issue of causation.
Although the evidence adduced by the plaintiffs on this question was entirely
circumstantial, it may not be said that it was insufficient as a matter of law. The plaintiffs'
principal*19 witness was a contractor who had leased a portion of the premises from
Spano. It was his testimony that there was no damage on or to the premises prior to
November 27; that he had heard an explosion at about noon on that day while he was
working some three blocks away and that, when he returned a few hours later, the
building ‘was cracked in the wall * * * the window broke, and the cement floor all pop
up.’ In addition, an insurance adjuster, an expert with wide experience in handling
explosion claims, who inspected the damage to Davis's car, testified that the damage was
evidently ‘caused by a concussion of one form or another.’ The defendants' expert
attributed the damage to another cause-poor maintenance and building deterioration-but,
admittedly, the defendants were engaged in blasting operations in the area at the time
and, as the Appellate Term expressly found, the inference that this was the cause of the
damage could properly be drawn. Even though the proof was not insufficient as a matter
of law, however, the Appellate Division affirmed on the sole ground that no negligence
had been proven against the defendants and thus had no occasion**36 to consider the
question whether, in fact, the blasting caused the damage. That being so, we must remit
the case to the Appellate Division so that it may pass upon the weight of the evidence
(CPLR 5501, subd. (c); 5613; see Spett v. President Monroe Bldg. & Mfg. Corp., 19
N.Y.2d 203, 278 N.Y.S.2d 826, 225 N.E.2d 527.)
The order appealed from should be reversed, with costs, and the matter remitted to the
Appellate Division for further proceedings in accordance with this opinion.
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Introduction to Tort Law
Professor Chiesa
GARRATT v. DAILEY
HILL, Justice.
The liability of an infant for an alleged battery is presented to this court for the first time.
Brian *199 Dailey (age five years, nine months) was visiting with Naomi Garratt, an
adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the
plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the
back yard to talk with Naomi and that, as she started to sit down in a wood and canvas
lawn chair, Brian deliberately pulled it out from under her. The only one of the three
persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not
testify as to how or why she fell.) The trial court, unwilling to accept this testimony,
adopted instead Brian Dailey's version of what happened, and made the following
findings:
‘III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff,
Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto
defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was
then and there located in the back yard of the above described premises, moved it
sideways a few feet and seated himself therein, at which time he discovered the plaintiff,
Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at
which time he hurriedly got up from the chair and attempted to move it toward Ruth
Garratt to aid her in sitting down in the chair; that due to the defendant's small size and
lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent
her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of
her hip, and other injuries and damages as hereinafter set forth.
‘IV. That the preponderance of the evidence in this case establishes that when the
defendant, Brian Dailey, moved the chair in question he did not have any wilful or
unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any
intent to bring about any unauthorized or offensive contact with her person or any objects
appurtenant thereto; that the circumstances which immediately preceded the fall of the
plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or
design to perform a prank or to effect an assault and battery upon the person of the
plaintiff.’ (Italics ours, for a purpose hereinafter indicated.)
It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and
serious injuries. To obviate*200 the necessity of a retrial in the event this court
determines that she was entitled to a judgment against Brian Dailey, the amount of
**1093 her damage was found to be $11,000. Plaintiff appeals from a judgment
dismissing the action and asks for the entry of a judgment in that amount or a new trial.
The authorities generally, but with certain notable exceptions, see Bohlen, ‘Liability in
Tort of Infants and Insane Persons,’ 23 Mich.L.Rev. 9, state that when a minor has
committed a tort with force he is liable to be proceeded against as any other person would
be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17
Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35
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Professor Chiesa
L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2
Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.
In our analysis of the applicable law, we start with the basis premise that Brian, whether
five or fifty-five, must have committed some wrongful act before he could be liable for
appellant's injuries.
[1] The trial court's finding that Brian was a visitor in the Garratt back yard is
supported by the evidence and negatives appellant's assertion that Brian was a trespasser
and had no right to touch, move, or sit in any chair in that yard, and that contention will
not receive further consideration.
[2] [3] It is urged that Brian's action in moving the chair constituted a battery. A
definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional
infliction of a harmful bodily contact upon another. The rule that determines liability for
battery is given in 1 Restatement, Torts, 29, § 13, as:
‘An act which, directly or indirectly, is the legal cause of a harmful contact with another's
person makes the actor liable to the other, if
‘(a) the act is done with the intention of bringing about a harmful or offensive contact or
an apprehension thereof to the other or a third person, and
‘(b) the contact is not consented to by the other or the *201 other's consent thereto is
procured by fraud or duress, and
‘(c) the contact is not otherwise privileged.’
We have in this case no question of consent or privilege. We therefore proceed to an
immediate consideration of intent and its place in the law of battery. In the comment on
clause (a), the Restatement says:
‘ Character of actor's intention. In order that an act may be done with the intention of
bringing about a harmful or offensive contact or an apprehension thereof to a particular
person, either the other or a third person, the act must be done for the purpose of causing
the contact or apprehension or with knowledge on the part of the actor that such contact
or apprehension is substantially certain to be produced.’ See, also, Prosser on Torts 41, §
8.
We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the
plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she
was in the act of sitting down, Brian's action would patently have been for the purpose or
with the intent of causing the plaintiff's bodily contact with the ground, and she would be
entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80
Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.
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The plaintiff based her case on that theory, and the trial court held that she failed in her
proof and accepted Brian's version of the facts rather than that given by the eyewitness
who testified for the plaintiff. After the trial court determined that the plaintiff had not
established her theory of a battery ( i. e., that Brian had pulled the chair out from under
the plaintiff while she was in the act of sitting down), it then became concerned with
whether a battery was established under the facts as it found them to be.
In this connection, we quote another portion of the comment on the ‘Character of actor's
intention,’ relating to clause (a) of the rule from the Restatement heretofore set forth:
‘It is not enough that the act itself is intentionally done and this, even **1094 though the
actor realizes or should realize *202 that it contains a very grave risk of bringing about
the contact or apprehension. Such realization may make the actor's conduct negligent or
even reckless but unless he realizes that to a substantial certainty, the contact or
apprehension will result, the actor has not that intention which is necessary to make him
liable under the rule stated in this section.’
A battery would be established if, in addition to plaintiff's fall, it was proved that, when
Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt
to sit down where the chair had been. If Brian had any of the intents which the trial court
found, in the italicized portions of the findings of fact quoted above, that he did not have,
he would of course have had the knowledge to which we have referred. The mere absence
of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to
commit an assault and battery on her would not absolve him from liability if in fact he
had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221.
Without such knowledge, there would be nothing wrongful about Brian's act in moving
the chair and, there being no wrongful act, there would be no liability.
[4] While a finding that Brian had no such knowledge can be inferred from the
findings made, we believe that before the plaintiff's action in such a case should be
dismissed there should be no question but that the trial court had passed upon that issue;
hence, the case should be remanded for clarification of the findings to specifically cover
the question of Brian's knowledge, because intent could be inferred therefrom. If the
court finds that he had such knowledge the necessary intent will be established and the
plaintiff will be entitled to recover, even though there was no purpose to injure or
embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge,
there was no wrongful act by him and the basic premise of liability on the theory of a
battery was not established.
[5] It will be noted that the law of battery as we have *203 discussed it is the law
applicable to adults, and no significance has been attached to the fact that Brian was a
child less than six years of age when the alleged battery occurred. The only circumstance
where Brian's age is of any consequence is in determining what he knew, and there his
experience, capacity, and understanding are of course material.
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From what has been said, it is clear that we find no merit in plaintiff's contention that we
can direct the entry of a judgment for $11,000 in her favor on the record now before us.
Nor do we find any error in the record that warrants a new trial.
What we have said concerning intent in relation to batteries caused by the physical
contact of a plaintiff with the ground or floor as the result of the removal of a chair by a
defendant furnishes the basis for the answer to the contention of the plaintiff that the trial
court changed its theory of the applicable law after the trial, and that she was prejudiced
thereby.
It is clear to us that there was no change in theory so far as the plaintiff's case was
concerned. The trial court consistently from beginning to end recognized that if the
plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled
the chair out from under the plaintiff while she was in the act of sitting down and she fell
to the ground in consequence thereof, a battery was established. Had she proved that state
of facts, then the trial court's comments about inability to find any intent (from the
connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions
of his findings as above set forth could have indicated a change of theory. But what must
be recognized is that the trial court was trying in those comments and in the italicized
findings to express the law applicable, not to the facts as the plaintiff contended they
were, but to the facts as the trial court found them to be. The remand for clarification
gives the plaintiff an opportunity to secure a judgment even though the trial court did not
accept her version of the facts, if from all **1095 the evidence, the trial court can find
that Brian knew with substantial*204 certainty that the plaintiff intended to sit down
where the chair had been before he moved it, and still without reference to motivation.
[6] The plaintiff-appellant urges as another ground for a new trial that she was refused
the right to cross-examine Brian. Some twenty pages of cross-examination indicate that
there was no refusal of the right of cross-examination. The only occasion that impressed
us as being a restriction on the right of cross-examination occurred when plaintiff was
attempting to develop the fact that Brian had had chairs pulled out from under him at
kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking
questions concerning statements made at Brian's home and in a court reporter's office.
When objections were sustained, counsel for plaintiff stated that he was asking about the
conversations to refresh the recollection of the child, and made an offer of proof. The fact
that plaintiff was seeking to develop came into the record by the very simple method of
asking Brian what had happened at kindergarten. Consequently what plaintiff offered to
prove by the cross-examination is in the record, and the restriction imposed by the trial
court was not prejudicial.
[7] It is argued that some courts predicate an infant's liability for tort upon the basis of
the existence of an estate in the infant; hence it was error for the trial court to refuse to
admit as an exhibit a policy of liability insurance as evidence that there was a source from
which a judgment might be satisfied. In our opinion the liability of an infant for his tort
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does not depend upon the size of his estate or even upon the existence of one. That is a
matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.
[8] The motion for a new trial was also based on newly discovered evidence. The case
having been tried to the court, the trial judge was certainly in a position to know whether
that evidence would change the result on a new trial. It was not of a character that would
make the denial of the motion an abuse of discretion.
*205 [9] The plaintiff complains, and with some justice, that she was not permitted to
take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice,
and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right ‘for good cause
shown’ to prevent the taking of a deposition, it seems to us that though it might well have
been taken under the supervision of the court to protect the child from leading,
misleading and confusing questions, the deposition should have been allowed, if the child
was to be permitted to testify at the trial. If, however, the refusal to allow the taking of
the deposition was an abuse of discretion, and that we are not prepared to hold, it has not
been established that the refusal constituted prejudicial error. (Parenthetically we would
add that the right to a review of the rulings on pretrial procedure or with respect to
depositions or discovery or incidental procedural motions preceding the trial seems to be
limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and
Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for
the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)
The cause is remanded for clarification, with instructions to make definite findings on the
issue of whether Brian Dailey knew with substantial certainty that the plaintiff would
attempt to sit down where the chair which he moved had been, and to change the
judgment if the findings warrant it.
Costs on this appeal will abide the ultimate decision of the superior court. If a judgment
is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs
on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent
will be entitled to recover his costs on this appeal.
Remanded for clarification.
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SPIVEY
v.
BATTAGLIA
DEKLE, Justice.
[1] This cause is before us on petition for writ of certiorari to review a decision of the
District Court of Appeal, Fourth District, Spivey v. Battaglia, Fla.App., 242 So.2d 477
(1971). It will be seen below that there is a misapplication and therefore conflict with
McDonald v. Ford, Fla.App., 223 So.2d 553 (2d DCA Fla.1969), vesting jurisdiction here
under Fla.Const. art. V, s 4, F.S.A.[FN1]
Petitioner (plaintiff in the trial court) and respondent (defendant) were employees of
Battaglia Fruit Co. on January 21, 1965. During the lunch hour several employees of
Battaglia Fruit Co., including petitioner and respondent, were seated on a work table in
the plant of the company. Respondent, in an effort to tease petitioner, whom he knew to
be shy, intentionally put his arm around petitioner and pulled her head toward him.
Immediately after this ‘friendly unsolicited hug,‘ petitioner suffered a sharp pain in the
back of her neck and ear, and sharp pains into the base of her skull. As a result, petitioner
was paralyzed on the left side of her face and mouth.
An action was commenced in the Circuit Court of Orange County, Florida, wherein the
petitioners, Mr. and Mrs. Spivey, brought suit against respondent for, (1) negligence, and
(2) assault and battery. Respondent, Mr. Battaglia, filed his answer raising as a defense
the claim that his ‘friendly unsolicited hug’ was an assault and battery as a matter of law
and was barred by the running of the two-year statute of limitations on assault and
battery. Respondent's motion for summary judgment was granted by the trial court on this
basis. The district court affirmed on the authority of McDonald v. Ford, Supra.
The question presented for our determination is whether petitioner's action could be
maintained on the negligence count, or whether respondent's conduct amounted to an
assault and battery as a matter of law, which would bar the suit under the two-year statute
(which had run).
In McDonald the incident complained of occurred in the early morning hours in a home
owned by the defendant. While the plaintiff was looking through some records, the
defendant came up behind her, laughingly embraced her and, though she resisted, kissed
her hard. As the defendant was hurting the plaintiff continued to his embrace, the plaintiff
continued to struggle violently and the defendant continued to laugh and pursue his lovemaking attempts. In the process, plaintiff struck her face hard upon an object that she was
unable to identify specifically. With those facts before it, the district court held that what
actually occurred was an assault and battery, and not negligence. The court quoted with
approval from the Court of Appeals of Ohio in Williams v. Pressman, 113 N.E.2d 395, at
396 (Ohio App.1953):
‘. . . an assault and battery is not negligence, for such action is intentional, while
negligence connotes an unintentional act.’
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Professor Chiesa
[2] [3] [4] [5] The intent with which such a tort liability as assault is concerned
is not *817 necessarily a hostile intent, or a desire to do harm. Where a reasonable man
would believe that a particular result was Substantially certain to follow, he will be held
in the eyes of the law as though he had intended it.[FN2] It would thus be an assault
(intentional). However, the knowledge and appreciation of a Risk, short of substantial
certainty, is not the equivalent of intent. Thus, the distinction between intent and
negligence boils down to a matter of degree. ‘Apparently the line has been drawn by the
courts at the point where the known danger ceases to be only a foreseeable risk which a
reasonable man would avoid (negligence), and becomes a substantial certainty.’ [FN3] In
the latter case, the intent is legally implied and becomes and assault rather than
unintentional negligence.
[6] [7] The distinction between the unsolicited kisses in McDonald, supra, and the
unsolicited hug in the present case turns upon this question of intent. In McDonald, the
court, finding an assault and battery, necessarily had to find initially that the results of the
defendant's acts were ‘intentional.’ This is a rational conclusion in view of the struggling
involved there. In the instant case, the DCA must have found the same intent. But we
cannot agree with that finding in these circumstances. It cannot be said that a reasonable
man in this defendant's position would believe that the bizarre results herein were
‘substantially certain’ to follow. This is an unreasonable conclusion and is a
misapplication of the rule in McDonald. This does not mean that he does not become
liable for such unanticipated results, however. The settled law is that a defendant
becomes liable for reasonably foreseeable consequences, though the exact results and
damages were not contemplated.[FN4]
[8] Acts that might be considered prudent in one case might be negligent in another.
Negligence is a relative term and its existence must depend in each case upon the
particular circumstances which surrounded the parties at the time and place of the events
upon which the controversy is based.[FN5]
The trial judge committed error when he granted summary final judgment in favor of the
defendant. The cause should have been submitted to the jury with appropriate instructions
regarding the elements of negligence. Accordingly, certiorari is granted; the decision of
the district court is hereby quashed and the cause is remanded with directions to reverse
the summary final judgment.
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Professor Chiesa
TALMAGE
v.
SMITH.
MONTGOMERY, J.
The plaintiff recovered in an action of trespass. The case made by plaintiff's proofs was
substantially as follows: On the evening of September 11, 1891, some limekilns were
burning a short distance from defendant's premises, in Portland, Ionia county. Defendant
had on his premises certain sheds. He came up to *372 the vicinity of the sheds, and saw
six or eight boys on the roof of one of them. He claims that he ordered the boys to get
down, and they at once did so. He then passed around to where he had a view of the roof
of another shed, and saw two boys on the roof. The defendant claims that he did not see
the plaintiff, and the proof is not very clear that he did, although there was some
testimony from which it might have been found that he was within his view. Defendant
ordered the boys in sight to get down, and there was **657 testimony tending to show
that the two boys in defendant's view started to get down at once. Before they succeeded
in doing so, however, defendant took a stick, which is described as being two inches in
width, and of about the same thickness, and about 16 inches long, and threw it in the
direction of the boys; and there was testimony tending to show that it was thrown at one
of the boys in view of the defendant. The stick missed him, and hit the plaintiff just above
the eye with such force as to inflict an injury which resulted in the total loss of the sight
of the eye. Counsel for the defendant contends that the undisputed testimony shows that
defendant threw the stick without intending to hit anybody, and that under the
circumstances, if it in fact hit the plaintiff,-defendant not knowing that he was on the
shed,-he was not liable. We cannot understand why these statements should find a place
in the brief of defendant's counsel. George Talmage, the plaintiff's father, testifies that
defendant said to him that he threw the stick, intending it for Byron Smith,-one of the
boys on the roof,-and this is fully supported by the circumstances of the case. It is hardly
conceivable that this testimony escaped the attention of defendant's counsel.
The circuit judge charged the jury as follows: “If you conclude that Smith did not know
the Talmage *373 boy was on the shed, and that he did not intend to hit Smith, or the
young man that was with him, but simply, by throwing the stick, intended to frighten
Smith, or the other young man that was there, and the club hit Talmage, and injured him,
as claimed, then the plaintiff could not recover. If you conclude that Smith threw the stick
or club at Smith, or the young man that was with Smith,-intended to hit one or the other
of them,-and you also conclude that the throwing of the stick or club was, under the
circumstances, reasonable, and not excessive, force to use towards Smith and the other
young man, then there would be no recovery by this plaintiff. But if you conclude from
the evidence in this case that he threw the stick, intending to hit Smith, or the young man
with him,-to hit one of them,-and that that force was unreasonable force, under all the
circumstances, then Smith, you see (the defendant), would be doing an unlawful act, if
the force was unreasonable, because he has no right to use it. Then he would be doing an
unlawful act. He would be liable then for the injury done to this boy with the stick, if he
threw it intending to hit the young man Smith, or the young man that was with Smith on
the roof; and the force that he was using, by the throwing of the club, was excessive and
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Professor Chiesa
unreasonable, under all the circumstances of the case, if it was, and then the stick went on
and hit the boy, as it seems to have hit him, if it was unreasonable and excessive, then he
would be liable for the consequences of it, because he was doing an unlawful act in the
outset; that is, he was using unreasonable and unnecessary force-excessive force-against
Smith and the young man, to get them off the shed.” We think the charge a very fair
statement of the law of the case. The doctrine of contributory negligence could have no
place in the case. The plaintiff, in climbing from the shed, could not have anticipated the
throwing of the missile, and the fact that he was a trespasser did not place him beyond the
pale of the law. The right of the plaintiff to recover was made to depend upon an
intention on the part of the defendant to hit somebody, and to inflict an unwarranted
injury upon some one. Under these circumstances, the fact that the injury resulted to
another than was intended does not relieve the defendant from *374 responsibility. The
cases cited in defendant's brief, we think, support this rule. Scott v. Shepherd, 3 Wils.
403, 2 W. Bl. 892; Railroad Co. v. Riley, 39 Ind. 568. The case is to be distinguished
from a case of negligence on the part of defendant. The act is found by the jury to have
been a willful act.
Plaintiff's counsel, in opening the case, referred to a conversation between the plaintiff's
father and the defendant, and stated that they submitted the matter to arbitration, and that
a certain compensation was agreed upon between the parties, and this proposition was
repeated in the offer of testimony. This the circuit judge ruled out, and held that it was
not competent to go to the jury, and cautioned the jury that the proposition should have
no weight with them. The ruling of the circuit judge was proper, but we are not prepared
to say that the statement of counsel was intended by him to influence the jury improperly,
nor do we think, under the circumstances of this case, that it had that result. The circuit
judge not only specially cautioned the jury not to take the matter into account, but further
defined the issues with exceptional clearness in his charge. Under these circumstances,
we think the case falls within the rulings of this court in Kirchner v. Railway Co., 91
Mich. 401, 51 N. W. 1059; Prentis v. Bates, 93 Mich. 234, 53 N. W. 153; Daniels v.
Weeks, 90 Mich. 190, 51 N. W. 273. The judgment will be affirmed, with costs.
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Professor Chiesa
WHITE
v.
The UNIVERSITY OF IDAHO
PER CURIAM.
Carol and Kenneth White brought this action on a tort claim against the University of
Idaho and Professor Richard Neher, alleging that the professor had caused injuries to
Carol White. The district court granted the University's motion for summary judgment
holding that, under the Idaho Tort Claims Act, a governmental entity **828 *565 has no
liability “for any claim which ... [a]rises out of ... battery” committed by an employee.
I.C. § 6-904(3).FN1 The Whites' appeal presents a single issue of law: whether Professor
Neher's intentional and unpermitted touching of Mrs. White constituted a battery. We
agree with the district court that it did and we affirm.
Summary judgment is an appropriate way to resolve this case. There are no genuine
issues of material fact; the case simply calls for the application of law to undisputed facts.
I.R.C.P. 56(c). In such cases we exercise free review.
Professor Neher and Mrs. White had long been acquainted because of their mutual
interest in music, specifically, the piano. Professor Neher was a social guest at the
Whites' home when the incident here occurred. One morning Mrs. White was seated at a
counter writing a resume for inclusion in the University's music department newsletter.
Unanticipated by Mrs. White, Professor Neher walked up behind her and touched her
back with both of his hands in a movement later described as one a pianist would make in
striking and lifting the fingers from a keyboard. The resulting contact generated
unexpectedly harmful injuries, according to the Whites. For purposes of summary
judgment, we deem these allegations to be true. Mrs. White suffered thoracic outlet
syndrome on the right side of her body, requiring the removal of the first rib on the right
side. She also experienced scarring of the brachial plexus nerve which necessitated the
severing of the scalenus anterior muscles.
Both Professor Neher and Mrs. White gave deposition testimony which is summarized
as follows. Professor Neher stated he intentionally touched Mrs. White's back, but his
purpose was to demonstrate the sensation of this particular movement by a pianist, not to
cause any harm. Professor Neher explained that he has occasionally used this contact
method in teaching his piano students. Mrs. White said Professor Neher's act took her by
surprise and was non-consensual. Mrs. White further remarked that she would not have
consented to such contact and that she found it offensive. The Whites argue that because
Professor Neher did not intend to cause harm, injury or offensive contact, his act
constitutes negligence rather than the intentional tort of battery. We disagree.
[1] [2] [3] The tort of battery requires intentional bodily contact which is either
harmful or offensive. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986) (citing
RESTATEMENT (SECOND) OF TORTS § 13 (1965)). The intent element of the tort of
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Professor Chiesa
battery does not require a desire or purpose to bring about a specific result or injury; it is
satisfied if the actor's affirmative act causes an intended contact which is unpermitted and
which is harmful or offensive. See Rajspic v. National Mutual Ins. Co., 110 Idaho 729,
718 P.2d 1167 (1986); RESTATEMENT (SECOND) OF TORTS §§ 8A, 16, 18 and 20
(1965). Indeed, the contact and its result may be physically harmless. Thus, a person may
commit a battery when intending only a joke, or a compliment-where an unappreciated
kiss is bestowed without consent, or a misguided effort is made to render assistance.
PROSSER & KEATON, THE LAW OF TORTS §§ 8, 9 (5th ed. 1984).
It is undisputed that Professor Neher intended to touch Mrs. White, though he did not
intend to cause harm or injury. His lack of any specific intent to harm or injure Mrs.
White is immaterial. Professor Neher's affirmative act caused an intended contact which
was unpermitted, offensive and, apparently, harmful. Such voluntary contact constitutes
the tort of battery. Accordingly, the district court's grant of summary judgment is
affirmed. Costs to the University of Idaho. No attorney fees on appeal.
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Professor Chiesa
WALLACE
v.
ROSEN
KIRSCH, Judge.
Mable Wallace appeals the jury verdict in favor of Indianapolis Public Schools (IPS) and
Harriet Rosen, a teacher for IPS. On appeal, Wallace raises the following issues:
I. Whether the trial court erred in refusing to give her tendered jury instruction regarding
battery.
*195 II. Whether the trial court erred in instructing the jury regarding the defense of
incurred risk.
We affirm.
FACTS AND PROCEDURAL HISTORY
In 1994, Rosen was a teacher at Northwest High School in Indianapolis. On April 22,
1994, the high school had a fire drill while classes were in session. The drill was not
previously announced to the teachers and occurred just one week after a fire was
extinguished in a bathroom near Rosen's classroom.
On the day the alarm sounded, Wallace was at the high school delivering homework to
her daughter Lalaya. Because Wallace was recovering from foot surgery and Lalaya's
class was on the second floor, Lalaya's boyfriend Eric Fuqua accompanied Wallace up
the stairs. Wallace and Fuqua were near the top of the staircase when they saw Lalaya
and began to speak with her. Jamie Arnold, a student who knew Lalaya and her mother,
joined the conversation. The alarm then sounded and students began filing down the
stairs while Wallace took a step or two up the stairs to the second floor landing.
In response to the alarm, Rosen escorted her class to the designated stairway and noticed
three or four people talking together at the top of the stairway and blocking the students'
exit. Rosen did not recognize any of the individuals but approached “telling everybody to
move it.” Transcript at 35. Wallace, with her back to Rosen, was unable to hear Rosen
over the noise of the alarm and Rosen had to touch her on the back to get her attention.
Id. at 259. Rosen then told Wallace, “you've got to get moving because this is a fire drill.”
Id. 259.
At trial, Wallace testified that Rosen pushed her down the stairs. Id. at 128. Rosen denied
pushing Wallace and testified that Wallace had not fallen, but rather had made her way
down the stairs unassisted and without losing her balance. Id. at 265-66.
At the close of the trial, Wallace tendered an instruction concerning civil battery. Over
Wallace's objection, the court refused to read the instruction to the jury.FN1 IPS and
Rosen tendered an instruction concerning the defense of incurred risk on the basis that
Wallace had continued up the stairs after hearing the alarm, had stopped at the landing to
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Professor Chiesa
talk, and had blocked the students' exit. Over Wallace's objection, the court gave the
incurred risk instruction. The jury found in favor of IPS and Rosen, and Wallace now
appeals.
DISCUSSION AND DECISION
[1] [2] Wallace claims that the trial court erred both in refusing to give the tendered
jury instruction concerning battery and in giving the instruction concerning incurred risk
as a defense to a claim of negligence. Instruction of the jury is left to the sound discretion
of the trial court. Control Techniques, Inc. v. Johnson, 737 N.E.2d 393, 400
(Ind.Ct.App.2000). Our review of a trial court's decisions is highly deferential, and we
will not disturb the court's judgment absent an abuse of that discretion. Id.
[3] [4] [5] [6] A party is normally entitled to have a tendered instruction read
to the jury. Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1104 (Ind.Ct.App.1997),
*196 trans. denied (1998); Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148
(Ind.Ct.App.1993), trans. denied (1994). In determining whether the trial court
erroneously refused a tendered instruction, we consider: (1) whether the tendered
instruction correctly states the law; (2) whether there is evidence in the record to support
giving the instruction; and (3) whether the substance of the instruction is covered by other
instructions. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402
(Ind.Ct.App.1999); Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 688
(Ind.Ct.App.1998), trans. denied. An instruction is properly rejected if it would tend to
mislead or confuse the jury. Barnard v. Himes, 719 N.E.2d 862, 868 (Ind.Ct.App.1999),
trans. denied. Further, “ ‘[e]ven if the instruction is a correct statement of the law, is
supported by the evidence, and is not covered by the other instructions, we will not
reverse unless the failure to give the instruction substantially and adversely affects the
rights of the complaining party so as to quite likely have affected the result.’ ” Id.
(quoting Miller v. Ryan, 706 N.E.2d 244, 248 (Ind.Ct.App.1999), trans. denied ).
I. Battery Instruction
Wallace first argues that it was error for the trial court to refuse to give the jury the
following tendered instruction pertaining to battery:
A battery is the knowing or intentional touching of one person by another in a rude,
insolent, or angry manner.
Any touching, however slight, may constitute an assault and battery.
Also, a battery may be recklessly committed where one acts in reckless disregard of the
consequences, and the fact the person does not intend that the act shall result in an injury
is immaterial.
Appellant's Brief at 7.
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Professor Chiesa
Wallace argues that the omission of the instruction was error because the instruction was
an accurate statement of the law, was supported by the evidence, and was not covered by
any other instruction read to the jury. Id. at 6. Appellees respond that the instruction was
properly omitted because there was no evidence presented that supported a battery
instruction. Id. at 3.
We agree with Appellees. The Indiana Pattern Jury Instruction for the intentional tort of
civil battery is as follows: “A battery is the knowing or intentional touching of a person
against [his] [her] will in a rude, insolent, or angry manner.” 2 Indiana Pattern Jury
Instructions (Civil) 31.03 (2d ed. Revised 2001).FN2 Battery is an intentional tort. Boruff
v. Jesseph, 576 N.E.2d 1297, 1300 (Ind.Ct.App.1991). In discussing intent, Professors
Prosser and Keeton made the following comments:
In a loose and general sense, the meaning of ‘intent’ is easy to grasp. As Holmes
observed, even a dog knows the difference between being tripped over and being kicked.
This is also the key distinction between two major divisions of legal liability-negligence
and intentional torts....
[I]t is correct to tell the jury that, relying on circumstantial evidence, they may infer that
the actor's state of mind was the same as a reasonable person's state of mind would have
been. Thus, ... the defendant on a bicycle who rides down a *197 person in full view on a
sidewalk where there is ample room to pass may learn that the factfinder (judge or jury)
is unwilling to credit the statement, “I didn't mean to do it.”
On the other hand, the mere knowledge and appreciation of a risk-something short of
substantial certainty-is not intent. The defendant who acts in the belief or consciousness
that the act is causing an appreciable risk of harm to another may be negligent, and if the
risk is great the conduct may be characterized as reckless or wanton, but it is not an
intentional wrong. In such cases the distinction between intent and negligence obviously
is a matter of degree. The line has to be drawn by the courts at the point where the known
danger ceases to be only a foreseeable risk which a reasonable person would avoid, and
becomes in the mind of the actor a substantial certainty.
The intent with which tort liability is concerned is not necessarily a hostile intent, or a
desire to do any harm. Rather it is an intent to bring about a result which will invade the
interests of another in a way that the law forbids. The defendant may be liable although
intending nothing more than a good-natured practical joke, or honestly believing that the
act would not injure the plaintiff, or even though seeking the plaintiff's own good.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 8, at 33, 36-37 (5th ed.
1984) (footnotes omitted).
Wallace, Lalaya, and Fuqua testified that Rosen touched Wallace on the back causing her
to fall down the stairs and injure herself. For battery to be an appropriate instruction, the
evidence had to support an inference not only that Rosen intentionally touched Wallace,
but that she did so in a rude, insolent, or angry manner, i.e., that she intended to invade
Wallace's interests in a way that the law forbids.
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Professor Chiesa
Professors Prosser and Keeton also made the following observations about the intentional
tort of battery and the character of the defendant's action:
[I]n a crowded world, a certain amount of personal contact is inevitable and must be
accepted. Absent expression to the contrary, consent is assumed to all those ordinary
contacts which are customary and reasonably necessary to the common intercourse of
life, such as a tap on the shoulder to attract attention, a friendly grasp of the arm, or a
casual jostling to make a passage....
The time and place, and the circumstances under which the act is done, will necessarily
affect its unpermitted character, and so will the relations between the parties. A stranger
is not to be expected to tolerate liberties which would be allowed by an intimate friend.
But unless the defendant has special reason to believe that more or less will be permitted
by the individual plaintiff, the test is what would be offensive to an ordinary person not
unduly sensitive as to personal dignity.
Keeton et al., § 9, at 42 (emphasis added).
[7] During the trial, Wallace gave the following testimony concerning the manner in
which Rosen touched her:
Q [Rosen] took both hands and placed them on your shoulder blades?
A Not across my shoulder. She had her finger tips [sic] and my shoulder, and turned me
around like, and moving it [sic].
Q Which way did she turn you?
A She turned me-I was going up when she turned me. She turned me towards the
stairwells.
*198 Q So, you're standing here, hands come on, you're turned. Are you turned this way
towards the wall? Or this way towards the open stairs?
A Towards the open stairs.
Q And, in fact, your testimony is that she took her hands, both of them, placed them on
your shoulders or approximately here.
A Um-hum. (affirmative response).
Q Turned you 180 degrees around?
A She didn't force turn me. But she put her hands there, and turned me and told me to
move it.
Q And she did so 180 degrees?
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Introduction to Tort Law
Professor Chiesa
A Not to 180 degrees, no.
Q Half that?
A Yeah, half that.
Q Okay, about 90. So now you're like this. Now where is Ms. Rosen?
A She's still standing up there.
...
Q What happened next, Ms. Wallace?
A That's when I slipped. I turned around-when she turned me around, that's when I
slipped. Because one of my-my left foot that I had the surgical [sic] on, that's when I
slipped.
Transcript at 126-28.
Viewed most favorably to the trial court's decision refusing the tendered instruction, the
foregoing evidence indicates that Rosen placed her fingertips on Wallace's shoulder and
turned her 90° toward the exit in the midst of a fire drill. The conditions on the stairway
of Northwest High School during the fire drill were an example of Professors Prosser and
Keeton's “crowded world.” Individuals standing in the middle of a stairway during the
fire drill could expect that a certain amount of personal contact would be inevitable.
Rosen had a responsibility to her students to keep them moving in an orderly fashion
down the stairs and out the door. Under these circumstances, Rosen's touching of
Wallace's shoulder or back with her fingertips to get her attention over the noise of the
alarm cannot be said to be a rude, insolent, or angry touching. Wallace has failed to show
that the trial court abused its discretion in refusing the battery instruction.
Furthermore, even if an instruction on battery was appropriate, Wallace's inclusion of
language that “a battery may be recklessly committed” created an instruction that was
likely to mislead or confuse the jury under the facts of this case. In the comment section
of the pattern instruction for battery, the Civil Instruction Committee (“Committee”),
citing three cases, agrees that “a battery may be recklessly committed where one acts in
reckless disregard of the consequences ...” 2 Indiana Pattern Jury Instructions (Civil)
31.03, comments. However, these three cases represent a type of recklessness that reveals
the actor's intent to commit the battery. See Kline v. Kline, 158 Ind. 602, 64 N.E. 9
(1902) (the defendant's intent to assault a woman and her children could be found in the
defendant's actions of threatening to shoot them and of pouring kerosene and attempting
to light a match in furtherance of the defendant's threat to burn down the house); Mercer
v. Corbin, 117 Ind. 450, 20 N.E. 132 (1889) (the supreme court, ignoring the defendant's
statement that he didn't mean to hit the plaintiff, found that the defendant committed
assault and battery when he rode his bicycle over the plaintiff who was standing on one
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Introduction to Tort Law
Professor Chiesa
side of a fourteen-foot-wide sidewalk in broad daylight) FN3; *199 Reynolds v. Pierson,
29 Ind.App. 273, 64 N.E. 484 (1902) (“horse play” in which the defendant jerked and
pulled with sufficient force to throw the plaintiff off another's arm and injure him
revealed a reckless disregard of the consequences and thus supplied grounds for inferring
defendant's constructive intent and the willful act of battery).
The facts in this case can be distinguished from those cited by the Committee. Rosen's
actions were clearly not intentional like the facts in Kline, nor can it be said that Rosen's
touching arose from a recklessness or wanton disregard of human life and safety found in
Mercer. Quite the contrary, the actions that Rosen took were intended to keep the student
traffic flowing out of the building and away from any potential danger. Rosen's actions
are reasonably interpreted as trying to prevent danger to human life and safety that was
created by Wallace's presence at the top of the stairs. Furthermore, from the record before
us it is clear that Rosen was not engaging in “horse play” like that found in Reynolds.
Wallace and Rosen did not know each other before the fire drill. Any touching arose only
in response to the fire drill and the attempt to facilitate a safe exit for staff and students
from the building. The inclusion of the reckless instruction with the intentional tort of
battery under the facts of this case would have allowed the jury to use a lesser standard to
convict Rosen and IPS of battery. We find that the inclusion of the “reckless” language in
the battery instruction would have been misleading and made the instructions as a whole
confusing to the jury.FN4
[8] Finally, it cannot be said that Wallace's rights were substantially and adversely
affected by the court's failure to give the battery instruction. There is a well-established “
‘duty on the part of school personnel to exercise ordinary and reasonable care for the
safety of children under their authority.’ ” Mark v. Moser, 746 N.E.2d 410, 414
(Ind.Ct.App.2001) (quoting Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554
(Ind.1987)). As a teacher, this duty of care fell on Rosen. A fire had been actually set in
the bathroom on Rosen's floor less than a week before the fire alarm sounded. On April
22, 1994, with no prior knowledge whether the alarm signaled a drill or a fire, Rosen
exercised ordinary and reasonable care when she tried to get the students to exit as
quickly as possible. Finding Wallace and three others creating a bottleneck at the top of
the staircase required Rosen to take quick action. It was necessary for Rosen to both raise
her voice and touch Wallace's back to get her attention. When Wallace objected to being
touched and did not move, it was also reasonable for Rosen to turn Wallace toward the
stairs and tell *200 her to get moving. Failing to give the battery instruction was not error
because, even if given, the facts of this case would not have supported a claim for
intentional battery.FN5
Affirmed.
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Professor Chiesa
VOSBURG
v.
PUTNEY.
The other facts fully appear in the following statement by LYON, J.:
The action was brought to recover damages for an assault and battery, alleged to have
been committed by the defendant upon the plaintiff on February 20, 1889. The answer is
a general denial. At the date of the alleged assault the plaintiff was a little more than 14
years of age, and the defendant a little less than 12 years of age. The injury complained of
was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the
knee. The transaction occurred in a school-room in Waukesha, during school hours, both
parties being pupils in the school. A former trial of the cause resulted in a verdict and
judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this
court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84, 47 N. W.
Rep. 99. The case has been again tried in the circuit court, and the trial resulted in a
verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are
sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal, and
require no repetition. On the last trial the jury found a special verdict, as follows: “(1)
Had the plaintiff during the month of January, 1889, received an injury just above the
knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on
the 20th day of February, 1889, nearly healed at the point of the injury? A. Yes. (3) Was
the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4)
Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent
before he received the blow or kick from the defendant? A. No. (5) What was the exciting
cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the
plaintiff with his foot, intend to do him any harm? A. No. (7) At what sum do you assess
the damages of the plaintiff? A. Twenty-five hundred dollars.” The defendant moved for
judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for
judgment on the verdict in his favor. The motions of defendant were overruled, and that
of the plaintiff granted. Thereupon judgment for plaintiff, for $2,500 damages and costs
of suit, was duly entered. The defendant appeals from the judgment.
*403 M. S. Griswold and T. W. Haight, ( J. V. Quarles, of counsel,) for appellant, to
sustain the proposition that where there is no evil intent there can be no recovery, cited: 2
Greenl. Ev. §§ 82-85; 2 Add. Torts, § 790; Cooley, Torts, p. 162; Coward v. Baddeley, 4
Hurl. & N. 478; Christopherson v. Bare, 11 Q. B. 473; Hoffman v. Eppers, 41 Wis. 251;
Krall v. Lull, 49 Wis. 405, 5 N. W. Rep. 874; Crandall v. Transportation Co., 16 Fed.
Rep. 75; Brown v. Kendall, 6 Cush. 292.
Ryan & Merton, for respondent.
LYON, J., ( after stating the facts.)
Several errors are assigned, only three of which will be considered.
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Introduction to Tort Law
Professor Chiesa
I. The jury having found that the defendant, in touching the plaintiff with his foot, did
not intend to do him any harm, counsel for defendant maintain that the plaintiff has no
cause of action, and that defendant's motion for judgment on the special verdict should
have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83,
the rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no
doubt, in actions or prosecutions for mere assaults. But this is an action to recover
damages for an alleged assault and battery. In such case the rule is correctly stated, in
many of the authorities cited by counsel, that plaintiff must show either that the intention
was unlawful, or that the defendant is in fault. If the intended act is unlawful, the
intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the
kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to
kick him was also unlawful. Had the parties been upon the play-grounds of the school,
engaged in the usual boyish sports, the defendant being free from malice, wantonness, or
negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold
the act of *404 the defendant unlawful, or that he could be held liable in this action.
Some consideration is due to the implied license of the play-grounds. But it appears that
the injury was inflicted in the school, after it had been called to order by the teacher, and
after the regular exercises of the school had commenced. Under these circumstances, no
implied license to do the act complained of existed, and such act was a violation of the
order and decorum of the school, and necessarily unlawful. Hence we are of the opinion
that, under the evidence and verdict, the action may be sustained.
II. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the
alleged injury inflicted upon him by the defendant, and also in regard to the wound he
received in January, near the same knee, mentioned in the special verdict. The defendant
claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it
produced a diseased condition of the bone, which disease was in active progress when he
received the kick, and that such kick did nothing more than to change the location, and
perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a
witness for plaintiff, (who was plaintiff's attending physician,) elicited on crossexamination, tends to some extent to establish such claim. Dr. Bacon first saw the injured
leg on February 25th, and Dr. Philler, also one of plaintiff's witnesses, first saw it March
8th. Dr. Philler was called as a witness after the examination of the plaintiff and Dr.
Bacon. On his direct examination he testified as follows: “I heard the testimony of
Andrew Vosburg in regard to how he received the kick, February 20th, from his
playmate. I heard read the testimony of Miss More, and heard where he said he received
this kick on that day.” (Miss More had already testified that she was the teacher of the
school, and saw defendant standing in the aisle by his seat, and kicking across the aisle,
hitting the plaintiff.) The following question was then propounded to Dr. Philler: “After
hearing that testimony, and what you know of the case of the boy, seeing it on the 8th day
of March, what, in your opinion, was the exciting cause that produced the inflammation
that you saw in that boy's leg on that day?” An objection to this question was overruled,
and the witness answered: “The exciting cause was the injury received at that day by the
kick on the shin-bone.” It will be observed that the above question to Dr. Philler calls for
his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to
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Introduction to Tort Law
Professor Chiesa
what was the proximate cause of the injury to plaintiff's leg. The plaintiff testified to two
wounds upon his leg, either of which might have been such proximate cause. Without
taking both of these wounds into consideration, the expert could give no intelligent or
reliable opinion as to which of them caused the injury complained of; yet, in the
hypothetical question propounded to him, one of these probable causes was excluded
from the consideration of the witness, and he was required to give his opinion upon an
imperfect and insufficient hypothesis,--one which excluded from his consideration a
material fact essential to an intelligent opinion. A consideration by the witness of the
wound received by the plaintiff in January being thus prevented, the witness had but one
fact upon which to base his opinion, to-wit, the fact that defendant kicked plaintiff on the
shin-bone. Based, as it necessarily was, on that fact alone, the opinion of Dr. Philler that
the kick caused the injury was inevitable, when, had the proper hypothesis been
submitted to him, his opinion might have been different. The answer of Dr. Philler to the
hypothetical question put to him may have had, probably did have, a controlling
influence with the jury, for they found by their verdict that his opinion was correct.
Surely there can be no rule of evidence which will tolerate a hypothetical question to an
expert, calling for his opinion in a matter vital to the case, which excludes from his
consideration facts already proved by a witness upon whose testimony such hypothetical
question is based, when a consideration of such facts by the expert is absolutely essential
to enable him to form an intelligent opinion concerning such matter. The objection to the
question put to Dr. Philler should have been sustained. The error in permitting the witness
to answer the question is material, and necessarily fatal to the judgment.
III. Certain questions were proposed on behalf of defendant to be submitted to the jury,
founded upon the theory that only such damages could be recovered as the defendant
might reasonably be supposed to have contemplated as likely to result from his kicking
the plaintiff. The court refused to submit such questions to the jury. The ruling was
correct. The rule of damages in actions for torts was held in Brown v. Railway Co., 54
Wis. 342, 11 N. W. Rep. 356, 911, to be that the wrongdoer is liable for all injuries
resulting directly from the wrongful act, whether they could or could not have been
foreseen by him. The chief justice and the writer of this opinion dissented from the
judgment in that case, chiefly because we were of the opinion that the complaint stated a
cause of action ex contractu, and not ex delicto, and hence that a different rule of
damages--the rule here contended for -- was applicable. We did not question that the rule
in actions for tort was correctly stated. That case rules this on the question of damages.
The remaining errors assigned are upon the rulings of the court on objections to
testimony. These rulings are not very likely to be repeated on another trial, and are not of
sufficient importance to require a review of them on this appeal. The judgment of the
circuit court must be reversed, and the cause will be remanded for a new trial.
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Introduction to Tort Law
Professor Chiesa
FISHER
v.
CARROUSEL MOTOR HOTEL, INC.
GREENHILL, Justice.
This is a suit for actual and exemplary damages growing out of an alleged assault and
battery. The plaintiff Fisher was a mathematician with the Data Processing Division of
the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency,
commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel,
Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and
Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass
Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the
Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court
rendered judgment for the defendants notwithstanding the verdict. The Court of Civil
Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there
was evidence that an actionable battery was committed, and, if so, whether the two
corporate defendants must respond in exemplary as well as actual damages for the
malicious conduct of Flynn.
The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a
one day's meeting regarding telemetry equipment at the Carrousel. The invitation
included a luncheon. The guests were asked to reply by telephone whether they could
attend the luncheon, and Fisher called in his acceptance. After the morning session, the
group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was
buffet style, and Fisher stood in line with others and just ahead of a graduate student of
Rice University who testified at the trial. As Fisher was about to be served, he was
approached by Flynn, who snatched the plate from Fisher's hand and shouted that he, a
Negro, could not be *629 served in the club. Fisher testified that he was not actually
touched, and did not testify that he suffered fear or apprehension of physical injury; but
he did testify that he was highly embarrassed and hurt by Flynn's conduct in the presence
of his associates.
The jury found that Flynn ‘forceably dispossessed plaintiff of his dinner plate’ and
‘shouted in a loud and offensive manner’ that Fisher could not be served there, thus
subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an
employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury
also found that Flynn acted maliciously and awarded Fisher $400 actual damages for his
humiliation and indignity and $500 exemplary damages for Flynn's malicious conduct.
[1] The Court of Civil Appeals held that there was no assault because there was no
physical contact and no evidence of fear or apprehension of physical contact. However, it
has long been settled that there can be a battery without an assault, and that actual
physical contact is not necessary to constitute a battery, so long as there is contact with
clothing or an object closely identified with the body. 1 Harper & James, The Law of
Torts 216 (1956); Restatement of Torts 2d, ss 18 and 19. In Prosser, Law of Torts 32 (3d
Ed. 1964), it is said:
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Introduction to Tort Law
Professor Chiesa
‘The interest in freedom from intentional and unpermitted contacts with the plaintiff's
person is protected by an action for the tort commonly called battery. The protection
extends to any part of the body, or to anything which is attached to it and practically
identified with it. Thus contact with the plaintiff's clothing, or with a cane, a paper, or any
other object held in his hand will be sufficient; * * * The plaintiff's interest in the
integrity of his person includes all those things which are in contact or connected with it.’
[2] [3] Under the facts of this case, we have no difficulty in holding that the
intentional grabbing of plaintiff's plate constituted a battery. The intentional snatching of
an object from one's hand is as clearly an offensive invasion of his person as would be an
actual contact with the body. ‘To constitute an assault and battery, it is not necessary to
touch the plaintiff's body or even his clothing; knocking or snatching anything from
plaintiff's hand or touching anything connected with his person, when, done is an
offensive manner, is sufficient.’ Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510
(1941).
Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v.
Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have
committed ‘an assault or trespass upon the person’ by snatching a book from the
plaintiff's hand. The jury findings in that case were that the defendant ‘dispossessed
plaintiff of the book’ and caused her to suffer ‘humiliation and indignity.’
The rationale for holding an offensive contact with such an object to be a battery is
explained in 1 Restatement of Torts 2d s 18 (Comment p. 31) as follows:
'Since the essence of the plaintiff's grievance consists in the offense to the dignity
involved in the unpermitted and intentional invasion of the inviolability of his person and
not in any physical harm done to his body, it is not necessary that the plaintiff's actual
body be disturbed. Unpermitted and intentional contacts with anything so connected with
the body as to be customarily regarded as part of the other's person and therefore as
partaking of its inviolability is actionable as an offensive contact with his person. There
are some things such as clothing or a cane or, indeed, anything directly grasped by the
hand which are so intimately connected with one's body as to be universally regarded as
part of the person.'
*630 We hold, therefore, that the forceful dispossession of plaintiff Fisher's plate in an
offensive manner was sufficient to constitute a battery, and the trial court erred in
granting judgment notwithstanding the verdict on the issue of actual damages.
[4] [5] [6] [7] In Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81
(1953), this Court refused to adopt the ‘new tort’ of intentional interference with peace of
mind which permits recovery for mental suffering in the absence of resulting physical
injury or an assault and battery. This cause of action has long been advocated by
respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44
Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4
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Professor Chiesa
Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New York,
37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d s 46(1). However, it is not
necessary to adopt such a cause of action in order to sustain the verdict of the jury in this
case. The Harned case recognized the well established rule that mental suffering is
compensable in suits for willful torts ‘which are recognized as torts and actionable
independently and separately from mental suffering or other injury.’ 254 S.W.2d at 85.
Damages for mental suffering are recoverable without the necessity for showing actual
physical injury in a case of willful battery because the basis of that action is the
unpermitted and intentional invasion of the plaintiff's person and not the actual harm
done to the plaintiff's body. Restatement of Torts 2d s 18. Personal indignity is the
essence of an action for battery; and consequently the defendant is liable not only for
contacts which do actual physical harm, but also for those which are offensive and
insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923). We hold,
therefore, that plaintiff was entitled to actual damages for mental suffering due to the
willful battery, even in the absence of any physical injury.
[8] We now turn to the question of the liability of the corporations for exemplary
damages. In this regard, the jury found that Flynn was acting within the course and scope
of his employment on the occasion in question; that Flynn acted maliciously and with a
wanton disregard of the rights and feelings of plaintiff on the occasion in question. There
is no attack upon these jury findings. The jury further found that the defendant Carrousel
did not authorize or approve the conduct of Flynn. It is argued that there is no evidence to
support this finding. The jury verdict concluded with a finding that $500 would
‘reasonably compensate plaintiff for the malicious act and wanton disregard of plaintiff's
feelings and rights. * * *’
The rule in Texas is that a principal or master is liable for exemplary or punitive damages
because of the acts of his agent, but only if:
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of
employment, or
(d) the employer or a manager of the employer ratified or approved the act.
[9] The above test is set out in the Restatement of Torts s 909 and was adopted in King
v. McGuff, 149 Tex. 434, 234 S.W.2d 403 (1950). At the trial of this case, the following
stipulation was made in open court:
'It is further stipulated and agreed to by all parties that as an employee of the Carrousel
Motor Hotel the said Robert W. Flynn was manager of the Brass Ring Club.'
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Introduction to Tort Law
Professor Chiesa
We think this stipulation brings the case squarely within part (c) of the rule
announced*631 in the King case as to Flynn's managerial capacity. It is undisputed that
Flynn was acting in the scope of employment at the time of the incident; he was
attempting to enforce the Club rules by depriving Fisher of service.
[10] The rule of the Restatement of Torts adopted in the King case set out above has
four separate and disjunctive categories as a basis of liability. They are separated by the
word ‘or.’ As applicable here, there is liability if (a) the act is authorized, or (d) the act is
ratified or approved, Or (c) the agent was employed in a managerial capacity and was
acting in the scope of his employment. Since it was established that the agent was
employed in a managerial capacity and was in the scope of his employment, the finding
of the jury that the Carrousel did not authorize or approve Flynn's conduct became
immaterial.
The King case also cited and relied upon Ft. Worth Elevator Co. v. Russell, 123 Tex. 128,
70 S.W.2d 397 (1934). In that case, it was held not to be material that the employer did
not authorize or ratify the particular conduct of the employee; and the right to exemplary
damages was supported under what is section (b) of the Restatement of King rule: The
agent was unfit, and the principal was reckless in employing (or retaining) him.
After the jury verdict in this case, counsel for the plaintiff moved that the trial court
disregard the answer to issue number eight (no authorization or approval of Flynn's
conduct on the occasion in question) and for judgment upon the verdict. The trial court
erred in overruling that motion and in entering judgment for the defendants
notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that
judgment.
The judgments of the courts below are reversed, and judgment is here rendered for the
plaintiff for $900 with interest from the date of the trial court's judgment, and for costs of
this suit.
33