Johnson v. Sampson
| Decision Date | 30 April 1926 |
| Docket Number | 25,218 |
| Citation | 208 N.W. 814,167 Minn. 203 |
| Parties | MABEL JOHNSON v. E. K. SAMPSON AND ANOTHER |
| Court | Minnesota Supreme Court |
E. K Sampson and Marie Stenseth appealed from an order Grindeland, J., overruling their demurrer to the complaint in an action for assault in the district court for Norman county. Affirmed.
Definition of assault.
1. An assault is an inchoate battery. Actual physical contact is not, but violence, threatened or offered, is an essential element. Mere words or threats are not enough to constitute an assault.
Complaint in action for assault.
2. When a general allegation of assault is qualified by a specification of the acts which constituted it, the sufficiency of the complaint is to be determined from a consideration of the specific acts alleged.
What creates cause of action.
3. An act which is a wrongful invasion of a legal right and causes an injury to the body or mind, recognized by reputable physicians as an injury of which the act was the proximate cause, gives rise to a right of action against the wrongdoer, although there was no visible hurt at the time of the act complained of.
Recovery of damages for false charge of unchastity.
4. Under G.S. 1923, § 10120, a false charge of unchastity made against a school girl 15 years of age, in her immediate presence and in the presence of another, is a misdemeanor if there was no justification for the accusation, and, if it was the direct cause of mental or bodily injury, there may be a recovery of damages in an action other than one for slander.
Assault and Battery, 5 C.J. p. 616 n. 9; p. 617 n. 25; p. 650 n. 35.
Torts, 38 Cyc. p. 440 n. 82; p. 497 n. 70.
See note in 38 L.R.A. (N.S.) 516.
See note in 51 L.R.A. (N.S.) 838; 6 A.L.R. 999; 2 R.C.L. 554; 1 R.C.L. Supp. 567 et seq.
M. A. Brattland, for appellants.
O. J. Ostensoe, for respondent.
This is an appeal from an order overruling a demurrer to the complaint, the court having given the statutory certificate of doubt.
The sole question is whether the complaint states a cause of action. It alleges that on March 25, 1925, the plaintiff was a school girl 15 years of age, residing with her parents in Norman county, attending a public school in that county, and then in good health. On that day the defendants came to the school house and took her into a separate room and then and there assaulted her and committed other wrongs and injuries, "which said assault and other wrongs and injuries consisted of the wrongful and malicious acts hereinafter set forth as follows:" The specific acts then set forth are that defendants charged her with having had sexual intercourse with various men. She truthfully denied the charge, whereupon she was told that if she did not confess she would be sent to the reform school. By their acts and threats, defendants cause her to believe that she would be deprived of her personal liberty and she and her parents disgraced, and put her in such fear that she was deprived of her free will and reason. To avoid being imprisoned and disgraced, she admitted the charge, although in truth and in fact it was false. By reason of these acts, plaintiff suffered great mental anguish, and received a nervous shock which seriously and permanently impaired her health.
The trial court was of the opinion that the complaint did not state a cause of action for assault, but did state one "for actionable wrong."
Respondent argues that the acts stated in the complaint constitute an assault and that the complaint should be sustained on that theory.
An assault is an inchoate battery. Actual physical contact is not, but violence, threatened or offered, is an essential element. Jacobs v. Hoover, 9 Minn. 189 (204); Plonty v. Murphy, 82 Minn. 268, 84 N.W. 1005; Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A.(N.S.) 96, 121 Am. St. 59, 12 Am. Cas. 740; Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068, 57 L.R.A. 559, 93 Am. St. 239; Brownback v. Frailey, 78 Ill.App. 262.
The great weight of authority is to the effect that more words or threats do not constitute an assault unless accompanied by an offer of physical violence. Nelson v. Crawford, 122 Mich. 466, 81 N.W. 335, 80 Am. St. 577; Braun v. Craven, 175 Ill. 401, 51 N.E. 657, 42 L.R.A. 199; Degenhardt v. Heller, 93 Wis. 662, 68 N.W. 411, 57 Am. St. 945; Kramer v. Ricksmeier, 159 Iowa 48, 139 N.W. 1091, 45 L.R.A.(N.S.) 928; Bouillon v. Laclede Gas Lt. Co. 148 Mo.App. 462, 129 S.W. 401; Mitchell v. Rochester Ry. Co. 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, 56 Am. St. 604.
In the present case the general allegation of assault is qualified by a specification of the acts which constituted it, hence the sufficiency of the complaint as one charging an assault is to be determined from a consideration of the specific acts set forth. Mitchell v. Mitchell, 45 Minn. 50, 47 N.W. 308. So considered, it is doubtful whether it states facts sufficient to constitute an assault.
But we think the complaint does state a cause of action for damages for a wrongful invasion of plaintiff's legal rights. In Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. 370, it was said that the law will not furnish redress for a wrong unless there was an act which took effect upon the person, the property or some other legal interest of the complainant. But it was also said that wherever there is a wrongful act which infringes on a legal right, even though no physical harm was done or threatened, there may be a recovery if mental suffering was a proximate result of the act.
In Hickey v. Welch, 91 Mo.App. 4, it was said:
"The ancient superstition which found the proximate cause of mental and nervous diseases in diabolical possession, was scarcely more ridiculous than the theory that when an ailment of that kind follows a great fright, due to another's tortious act, the fright and not the tort is the proximate cause of the injury."
In Wilkinson v. Downton, 2 Q.B. Div. (1897) 57, damages were allowed for the injurious consequences of fright intentionally caused by defendant, who came to plaintiff's house and told her that her husband had met with an accident in which both his legs were broken and that he was lying at a public house and wished ...
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