Masters v. Becker

• Decision Date: 23 November 1964
• Citation: 22 A.D.2d 118,254 N.Y.S.2d 633
• Court: New York Supreme Court — Appellate Division
• Parties: Susan MASTERS, an infant, etc., et al., Appellants, v. Claudia BECKER, an infant, etc., Respondent.

Page 633

254 N.Y.S.2d 633

22 A.D.2d 118

Susan MASTERS, an infant, etc., et al., Appellants, v. Claudia BECKER, an infant, etc., Respondent.

Supreme Court, Appellate Division, Second Department.

Nov. 23, 1964.

Jerome M. Leitner, Brooklyn, for appellants, Abraham Reingold, Brooklyn, of counsel.

Thomas V. Kingham, New York City, for respondent, Bernard Meyerson, Brooklyn, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, HILL and RABIN, JJ.

CHRIST, Justice.

The single question is whether, with respect to a cause of action for assault, the definition of intent given by the trial court in its charge and in its ruling on an exception and a request to charge constituted reversible error. The court stated that the plaintiffs were required to establish that the infant defendant intended the act that resulted in injury, that she intended to commit an injury, and that she intended the very injury sustained by the infant plaintiff. The court also posed the question: 'Can a nine-year old, by her action, intend the injury which resulted in this case?' To all this plaintiffs' counsel took an exception and requested the court to charge that plaintiffs were required to establish only that 'the act was done with intent to inflict an offensive bodily contact.' The court refused such request to charge and adhered to its previous instructions.

When the injury occurred, the infant plaintiff Susan Masters was about six years of age and the infant defendant Claudia Becker was about nine years of age. They, together with Claudia's sister, were playing on a motor truck in an empty lot, and Susan was standing on a narrow ledge on the outside of the truck's tailgate. Claudia told or at least urged Susan to get off; and Susan refused and cried, saying she was frightened. Then Claudia pried Susan's fingers off the tailgate and Susan fell to the ground, sustaining severe injuries. Claudia's testimony indicated that the reason for her act was to force Susan to give Claudia and her sister their turns to get onto the ledge so that they could jump off.

The correct rule as to intent is set forth in the American Law Institute's Restatement of the Law (Restatement of the Law of Torts, vol. 1, § 16, subd. 1), namely: that intent is established 'If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other * * * although the act was not done with the intention of bringing about the resulting bodily harm.' (See, also, id., § 13, subd. [a]; 1 Harper and James, The Law of Torts, § 3.3, pp. 215-220; Prosser, Law of Torts [2d ed.], § 9, pp. 32-33.)

The law as thus stated has been followed in Baldinger v. Banks, 26 Misc.2d 1086, 201 N.Y.S.2d 629 which case was approved by this court in a subsequent connected case (Baldinger v. Consolidated Mut. Ins. Co., 15 A.D.2d 526, 222 N.Y.S.2d 736, affd. 11 N.Y.2d 1026, 230 N.Y.S.2d 25, 183 N.E.2d 908; see, also, Exchange Mut. Ins. Co., v. Blazey, 38 Misc.2d 34, 235 N.Y.S.2d 421, affd. 19 A.D.2d 682, 241 N.Y.S.2d 602, iv. to app. den. 13 N.Y.2d 601, 248 N.Y.S.2d 1026; 196 N.E.2d 891). There are other consistent decisions to the same effect (McGovern v. Weis, 265 App.Div. 367, 39 N.Y.S.2d 115; Van Voorhis v. Hawes, 12 How.Pr. 406; Vandenburgh v. Truax, 4 Denio 464; Semble: Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A.,N.S., 505; Hawkins v. Kuhne, 153 App.Div. 216, 137 N.Y.S. 1090, affd. 208 N.Y. 555, 101 N.E. 1104; Fidler v. Murphy, 203 Misc. 51, 113 N.Y.S.2d 388).

A plaintiff in an action to recover damages for an assault founded on bodily contact must prove only that there was bodily contact; that such contact was offensive; and that the defendant intended to make the contact. The plaintiff is not required to prove that defendant...