LAW OF TORTS

PART I

TRESPASS

BY

WILLIAM CAREY JONES, A.B. A M.*

CHAPTER I.

TRESPASS TO THE PERSON-BATTERY-ASSAULT— FALSE IMPRISONMENT.

1. Trespass.-The idea of trespass implies a direct interference with the person or property of another. The person so interfering with, or injuring, another's person or property, is usually liable for the consequences of his acts irrespective of his intention to do harm. In other classes of wrongs, liability may depend more or less upon the moral blameworthiness of the actor, but in trespass the only question is whether the act which constitutes the trespass is his own act. A person's rights of immunity with respect to his person or his property is absolute, and any direct invasion thereof by another gives rise to a right of action for damages, nominal if the injury sustained is nominal, substantial if the injury sustained is substantial.

* Director, School of Jurisprudence, University of California.

2. Forms of trespass to the person.-The security of a man's person is naturally the first object of solicitude in a regulated form of society. Violations of such security, or trespass, to the person may occur under three different forms-battery, assault, and false imprisonment. The direct application of violence to one's person constitutes battery; a display of force, indicating an intended battery, coupled with an apparent ability to commit the battery, thereby putting the person in fear of a battery, constitutes assault; while restraint of the body, in a way not lawfully justified or excused, constitutes false imprisonment.

3. Battery.-Lord Holt's oft-quoted dictum that "the least touching of another in anger is a battery, ," is frequently taken to mean that to constitute a battery there must be anger, or at least a hostile intent, on the part of the assailant. It seems rather to mean that the least touching of another will be a battery, if such touching is indeed an intrusion on a man's immunity of his person. The test whether an application of force, however slight, to another's body constitutes a battery, is probably absence of consent on the part of the plaintiff, rather than presence of hostile intent on the part of the defendant. But a hostile spirit on the part of the defendant carries with it naturally a lack of consent on the part of the plaintiff, and in this sense the manner in which the touching is done tends to decide the question whether it was justifiable or

1 Cole v. Turner, 6 Mod. 149 (Eng.), LEADING ILLUSTRATIVe Cases. 2 Coward v. Baddeley, 4 H. & N. 478 (Eng.).

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not, and, therefore, whether there was a battery or not. As instances of acts constituting a battery may be mentioned: any blow with the hand, a weapon or missile; throwing water on a person;3 spitting in his face; cutting off his hair; caressing a woman by a man not holding a relation to her entitling him so to do; using roughly an initiate into a secret society; "smoking out" a tenant; snatching a paper from the hands of another; injuring another, by an unjustifiable act, while engaged in horseplay.10 Where the defendant had authority to enter the outer door of the plaintiff's dwelling house to deliver goods, he was held guilty of a battery when he entered a bed-room and took hold of the plaintiff to wake him up in order to present a bill." On the other hand, instances of touching another's body which do not amount to a battery, because not done hostilely, but done with the express or implied consent of the person touched, are: striking another on the arm or breast in discourse; 12 pushing one gently aside in a crowd or narrow passage.

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4. Same subject.-"Provoking and insulting language constitute a defense to acts of violence in a

* Pursell v. Horn, 8 A. & E. 602 (Eng.).

4 Draper v. Baker, 61 Wis. 450, 21 N. W. 527.

Forde v. Skinner, 4 C. & P. 439, 19 E. C. L. 494 (Eng.).

• Goodrum v. State, 60 Ga. 509.

Kinver v. Phoenix Lodge, 7 Ont. 377 (Canada).

8 Wood v. Young, 20 Ky. Law R. 1931, 50 S. W. 541.

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

10 Fitzgerald v. Cavin, 110 Mass. 153; Reynolds v. Pierson, 29 Ind. App. 273, 64 N. E. 484, LEADING Illustrative CASES.

11 Richmond v. Fisk, 160 Mass. 84, 35 N. E. 103.

12 Tuberville v. Savage, 1 Mod. 3 (Eng.), LEADing Illustrative Cases.

13 Cole v. Turner, 6 Mod. 149 (Eng.), LEADING Illustrative Cases.

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civil action no more than in a criminal prosecution. The farthest that the law has gone, and the farthest that it can go, whilst attempting to maintain a rule, is to permit the high provocation of language to be shown as a palliation for the acts and results of anger; that is, in legal phrase, to be shown in mitigation of damages.' Drunkenness is no excuse for a tort.15 Even the most urgent calls of family affection will not justify a trespass. Thus, where a girl was in the service of the plaintiff and was very ill in his house, the entry by the girl's mother, without permission of the plaintiff, was held to be a trespass. 16 And a husband's desire to attend the funeral of his wife, which was held in a stranger's house, gave him no right to enter the house against the will of the owner." And a priest, who desires to administer the sacraments of penance to a sick person, may not on that account justify the use of force in ejecting from the room a person who is lawfully there.18

5. Same subject-Intention immaterial.—In all cases of battery the law says, in effect, that a man is conclusively presumed to intend the natural consequences of his acts. It therefore cuts no figure whether he did actually intend the consequences or not. This rule, that the question of intention is irrelevant where actual bodily injury results from a battery, may be illustrated by concrete cases. A

14 Ireland v. Elliott, 5 Iowa 478.

15 Reese v. Barbee, 61 Miss. 181, LEADING ILLUSTRATIVE Cases. 16 Parlet v. Bowman, 2 Rolle, Abr., 567 (Eng.).

17 Neilson v. Brown, 13 R. I. 651.

18 Cooper v. McKenna, 124 Mass. 284.

and B are fighting, and one of them accidently strikes a bystander in the eye. The person injured can recover of the man who struck him, although the injury to him was unintentional; intent or the lack thereof in such a case only affecting the amount of damages recoverable.19 A school boy recklessly discharges an arrow in the direction of another boy, who has hidden behind a basket. The latter raises his head just in time to have his eye hit and put out. The boy shooting the arrow is liable although he had no intention of shooting the plaintiff.20 One handled his gun carelessly while shooting at a mark and shot another man. He is liable although he did not intend the actual consequence that followed.21 One recklessly rode a bicycle against another person standing on the sidewalk. He is liable for the unintended accident.2

6. Assault.-An assault is defined as "an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented." 23 It is an attempted or inchoate battery. There must be an overt act indicating an intention to commit a battery, coupled with the capacity of carrying the intention into effect." 24 "If you direct a weapon, or if you raise your fist, within those limits which give you the means of striking, that

19 James v. Campbell, 5 C. & P. 372, 24 E. C. L. 611 (Eng.).

20 Bullock v. Babcock, 3 Wend. 391 (N. Y.), LEADING ILLUSTRATIVE CASES. 21 Weaver v. Ward, 1 Hob. 134 (Eng.).

22 Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132.

23 Cooley, Torts (3d ed.), p. 278.

24 Read v. Coker, 13 C. B. 850 (Eng.).