Mercer v. Corbin

• Decision Date: 23 February 1889
• Docket Number: 13,554
• Citation: 20 N.E. 132,117 Ind. 450
• Parties: Mercer v. Corbin
• Court: Indiana Supreme Court

20 N.E. 132

117 Ind. 450

Mercer v. Corbin

No. 13,554

Supreme Court of Indiana

February 23, 1889

From the Miami Circuit Court.

Judgment affirmed.

S Keith, J. S. Slick, L. Walker and W. B. McClintic, for appellant.

E Calkins, G. W. Holman, W. McMahan and J. L. Farrar, for appellee.

OPINION

Elliott, C. J.

The single count of the complaint charges that the appellant "assaulted, beat and wounded the plaintiff." The answer is the general denial. The issue presented for trial, therefore, was, did the appellant commit an assault and battery upon the person of the appellee?

The material facts embodied in the special verdict may be thus summarized: On the afternoon of the 10th day of May, 1884, the appellee was standing on a public sidewalk in the town of Rochester. He was standing near the outer edge of the pavement, facing the northeast, and the appellant, coming from the west, rode a bicycle against him, threw him down and severely injured him. The sidewalk was fourteen feet in width, and there was nothing to obstruct the view or passage of the appellant.

The verdict states that the "defendant carelessly, recklessly and rudely ran against and upon said Corbin."

If the appellant were charged with a tort, based on mere negligence, the right of recovery would be perfectly clear, for there can be no doubt that the appellant was guilty of culpable negligence. The complaint, however, does not proceed upon the theory that the wrong was a mere negligent one, and we can not sustain the recovery upon any other cause of action than that set forth in the complaint. Feder v. Field, ante, p. 386; Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, 14 N.E. 70.

There must be something more than a mere negligent touching of a plaintiff's person in order to constitute an assault and battery. It is, however, not essential that there should be a direct or specific intention to commit an assault and battery at the time violence is done a plaintiff. The facts may be such as to create an implied or constructive intention to do a wrongful act, although there is no direct or specific unlawful intention. Palmer v. Chicago, etc., R. R. Co., supra. In the case referred to we said: "The authorities, from the earliest years of the common law, recognize the rule that there may be a wilful wrong without a direct design to do harm. The principle has been applied to furious driving, to collisions between vessels, to the taking of unruly animals into crowds, to carelessly laying out poison for rats, to want of caution towards drunken persons and to the careless casting of logs and the like upon highways. 1 Hale Pleas of the Crown (Am. ed.), 475, and authorities, n. 4; 4 Blackst. Com. 182."

The question is fully and well discussed by Mr. Bishop, who says: "There is little distinction, except in degree, between a positive will to do wrong and an indifference whether wrong is done or not." 1 Bishop Crim. Law, chapter 20.

The principle we are asserting is strikingly illustrated in the old cases wherein it was affirmed that if a man carelessly casts a log from a window upon a much frequented way and kills another, his offence is murder in the second degree, but if the log is cast upon a highway not much travelled, the offence is manslaughter.

Mr. Addison applies the general principle to cases of assault and battery, saying: "An assault may be committed without any design or intention to commit an assault; for, if the person of one man is violently struck by another, this is an assault; and it is no answer to say that it was done unintentionally, as, for instance, in endeavoring to strike some one else. So, if a man drives against and violently upsets the plaintiff in his carriage, and knocks him down, or overturns the chair in which he is seated, the person thus striking the plaintiff, or knocking him down, is guilty of an assault, although he had no intention to commit an assault." 1 Addison Torts (Wood's ed.), 142.

In our own reports is found a very striking illustration of the principle we are discussing. In the case referred to, a man passing through a public park in the city of Indianapolis in the early morning aimed his pistol at a tree, drew the trigger and killed a lad who was several hundred yards distant, and who was unseen at the time the pistol was discharged, and the court held that the accused was guilty of manslaughter. Flinn v. State, 24 Ind. 286.

In the case of Peterson v. Haffner, 59 Ind. 130 (26 Am. Rep. 81), a boy, in sport, but wantonly, threw a piece of mortar at another boy and accidentally struck a third, and it was held that he had committed an assault and battery.

The defendant in the case of State v. Myers, 19 Iowa 517, recklessly discharged a pistol into a crowd, but without any intention to hurt any one, and a conviction for assault and battery was sustained.

In Bullock v. Babcock, 3 Wend. 391, a boy aimed at a basket, the arrow struck the plaintiff, and it was held that an action for assault and battery would lie.

It was held in Commonwealth v. Lister, 15 Phila. 405, that a man who fired a pistol intending to shoot through the floor of a Pullman car, but accidentally hit a bystander, was rightly convicted of assault and battery.

These cases fully serve our purpose, for they sufficiently prove that there may be an actionable assault and battery, although there is no actual or specific intent to commit that offence. They are, in truth, no more than examples of the general rule everywhere prevailing, that from recklessness and wanton disregard of human life and safety malice and criminal intent may be inferred. Johnson v. McConnel, 15 Hun 293; Ricker v. Freeman, 50 N.H. 420; Vandenburgh v. Truax, 4 Denio, 464; Welch v. Durand, 36 Conn. 182; Morris v. Platt, 32 Conn. 75; Clark v. Chambers, L. R. 3 Q. B. Div. 327; S. C. 17 Alb. L. J. 458; Wright v. Clark, 50 Vt. 130, 135; Regina v. Salmon, 23 Alb. L. J. 1.

The specific facts stated in the verdict justify the finding of the jury that the act of the appellant was a rude and reckless one, and they also justify the legal conclusion that there was such a reckless disregard of consequences as to imply an intention to assault the appellee. They fully supply the grounds for inferring the constructive intent which makes a wrongful act wilful or intentional. There was at least ten feet of the sidewalk entirely unobstructed, and the slightest regard for the safety of the appellee would have enabled the appellant to have avoided...