Kline v. Kline
| Decision Date | 23 May 1902 |
| Docket Number | 19,855 |
| Citation | 64 N.E. 9,158 Ind. 602 |
| Parties | Kline v. Kline |
| Court | Indiana Supreme Court |
From Jasper Circuit Court; J. S. Lairy, Special Judge.
Action by Addie Kline against Charles M. Kline for damages resulting from an assault. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
D Fraser, W. H. Isham, W. Cummings and W. Darroch, for appellant.
J. T Saunderson, E. G. Hall and T. B. Cunningham, for appellee.
The appellee brought this action against appellant to recover damages for an alleged assault. The evidence shows without dispute the following state of facts: Late in the afternoon of January 2, 1899, appellant went to the home of appellee and her husband, where she was alone with her young children and told her that he wanted her to move out, that he would help her do so, that he intended to burn the house, and that the sun would never shine on it again. Appellant then went away, but returned in a few minutes. When appellee was advised of his return, she went to the door and found that he had poured kerosene upon the side of the house and was scratching a match, for the seeming purpose of setting fire to the house. When she appeared appellant pointed a gun at her, and told her that if she did not go back in the house he would blow her head off; and then he added that if she did not leave the place he would shoot her and her children. Appellee and her children were greatly alarmed and fled to the home of their nearest neighbor, who lived about a mile away. The air was cold, and appellee was insufficiently clothed; and she testifies that as a result of her exposure she contracted a severe cold that settled in her head and lungs, and caused her to be ill for two or three months. Appellant made no attempt to gainsay the evidence of the outrageous conduct on his part contained in the above recital.
There was a verdict and a judgment for appellee. Appellant's counsel, in a variety of ways, have sought to present the question whether there can be a recovery of damages for mere fright. Apart from any consideration as to whether there was any showing of a present ability to commit the threatened violence, so as to give a remedy for the public wrong, by way of prosecution for assault, we feel clear that there was such an invasion of appellee's private right as would authorize a recovery for such damages as she sustained. Even if we were to grant, for the sake of the argument, that there was not an assault, within the meaning of our criminal statute, yet there was such an assault as clearly subjected the offender to a civil action at common law. A reputable writer upon the criminal law thus defines the term assault: "An attempt or the unequivocal appearance of an attempt, with force or violence, to do a corporal injury, and may consist of any act which shall convey, to the mind of the person set upon, a well grounded apprehension of personal violence." 2 Arch. Cr. Pr. & Pl. 41. Whatever may be the changes in the public remedy, the right of private action, in the absence of other legislation, must remain as at common law. Sir William Blackstone, in his book on private wrongs, said: 3 Wm. Blks. Com., p. *119. Judge Cooley, in his Elements of Torts (p. 29) said: . The same learned writer in his work on Torts (note to p. *161) said: "Presenting an unloaded gun at one who supposes it to be loaded, within shooting distance, is not such an assault as can be punished criminally, although it may sustain a civil action." As said by Gilchrist, C. J., in Beach v. Hancock, 27 N.H. 223, 229, 59 Am. Dec. 373: ...
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