Howell v. Winters

• Decision Date: 21 May 1910
• Citation: 58 Wash. 436,108 P. 1077
• Parties: HOWELL et al. v. WINTERS.
• Court: Washington Supreme Court

108 P. 1077

58 Wash. 436

HOWELL et al. v. WINTERS.

Supreme Court of Washington

May 21, 1910

Department 1.Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by Julia Howell and others against John Winters.From a judgment for plaintiffs, defendant appeals.Affirmed.

W. H Abel, for appellant.

Morgan & Brewer, for respondents.

RUDKIN C.J.

On the 7th day of July, 1909, the plaintiffJulia Howell visited a store conducted by the defendant, John Winters, and his brother, in the city of Hoquiam, for the purpose of returning a corset purchased by her husband a few days before, and securing a return of the purchase price.The defendant and his brother denied that the purchase was made in their store, and refused to accept the corset or refund the money.In the controversy that arose between the parties over the return of the money the plaintiffs contend that the defendant assaulted the plaintiffJulia Howell, and used vile and opprobrious language towards her, for which damages were sought in this action.The jury returned a verdict in favor of the plaintiffs in the sum of $1,200.On motion for a new trialthe court required them to remit the sum of $700 from the verdict, and, the remission being made, a judgment was entered for the residue, from which this appeal is prosecuted.

In its charge to the jury the court defined as assault as follows 'An assault is an action, or conduct, on the part of the defendant--for instance, if you believe her testimony that he shook his fist in front of her face angrily and unlawfully when he was in such proximity to her, as that he could, or might have, struck her, also near enough to produce a feeling on her part that she might be struck, that would be an assault.Then, of course, if he did strike her, that would be an assault and battery.She may recover in case you only find assault, or in case you find assault and battery, if you find it was made unlawfully and under the circumstances I have mentioned.'Upon this instruction the first error is assigned.It may well be doubted whether an erroneous definition of the term 'assault' would be prejudicial in this case, for all the testimony on the one side tended to show an actual battery, while the testimony on the other side tended to refute either an assault or a battery.But, regardless of this, we think the definition as given is substantially correct.An assault was formerly defined by our statute as 'an attempt in a rude, insolent, and angry manner unlawfully to touch, strike, beat, or wound another person, coupled with a present ability to carry such attempt into execution.'Ballinger's Ann. Codes & St.§ 7055, (Pierce's Code,§ 1572).This section was repealed by the new Criminal Code, and, so far as we are able to discover, the term 'assault' is not defined in the latter act.We must therefore look to the common law for a definition.Cooley defines the terms thus: 'An assault is an attempt, with unlawful force, to inflict bodily injuries on another, accompanied with the apparent present ability to give...