Pizitz v. Bloomburgh
| Decision Date | 19 May 1921 |
| Docket Number | 6 Div. 396 |
| Citation | 89 So. 287,206 Ala. 136 |
| Parties | PIZITZ v. BLOOMBURGH. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; James A. Mitchell, Special Judge.
Action by Mrs. William B. Bloomburgh against Louis Pizitz for damages for an assault and battery. There was judgment for the defendant, which on motion of the plaintiff was set aside and new trial awarded, from which latter order and judgment defendant appeals. Affirmed.
Leader, Ullman & Ewing, of Birmingham, for appellant.
Grace & Simpson, of Birmingham, for appellee.
Action for damages for an assault and battery, instituted by appellee against appellant. A verdict for defendant, appellant, was returned by the jury. The motion for new trial was granted on the ground that the court erred in giving, at the request of defendant, this instruction:
"(7) To make out a case of assault and battery it must appear that the wrong or injury was intentionally done."
In this jurisdiction it has been soundly declared and established that to maintain a civil action for damages for an assault and battery it is not essential that the infliction of injury upon the party assailed should be intended. Carlton v. Henry, 129 Ala. 479, 482, 29 So. 924; Seigel v. Long, 169 Ala. 79, 82, 53 So. 753, 33 L.R.A. (N.S.) 1070; B.R., L. & P. Co. v. Coleman, 181 Ala. 478, 482, 61 So. 890. Furthermore, this doctrine receives general acceptance in other jurisdictions. The instruction quoted exacted, in the alternative at least, an intention to injure as a condition to the maintenance of a civil action for damages for an assault and battery. In giving it the court committed an error highly prejudicial to the plaintiff, an error that could not be pronounced harmless under the principle or direction of rule 45 (175 Ala. xxi, 61 South. ix).
The motion for new trial was properly granted.
Affirmed.
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City of Birmingham v. Thompson
...essential. (Citation omitted.) Accord, Birmingham Ry., Light & Power Co. v. Coleman, 181 Ala. 478, 61 So. 890 (1913); Pizitz v. Bloomburgh, 206 Ala. 136, 89 So. 287 (1921); Honeycutt v. Louis Pizitz Dry Goods Co., 235 Ala. 507, 180 So. 91 In Burge v. Forbes, 23 Ala.App. 67, 70, 120 So. 577 ......
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Matter of Rice, Bankruptcy No. 81-05101
...v. Pressman, 113 N.E.2d 395 (Ohio App.1953). Hornbook law embraces intentional wrong as an element of assault and battery. Alabama, in the Pizitz cases, strayed from the ingredient of intention as an essential element to sustain a civil action for assault and battery.2 Sometimes Courts supp......
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Sellers v. Edwards, 6 Div. 924
...for the defendant. The jury found for the defendant. Appellant cites in support of his position this court's case of Pizitz v. Bloomburgh, 206 Ala. 136, 89 So. 287 (1921). There, this court did affirm the action of the trial court in granting a motion for new trial on the ground that the co......
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Honeycutt v. Louis Pizitz Dry Goods Co., 6 Div. 274.
... ... to the jury on the negligence count ... It is ... settled in this jurisdiction that to maintain a civil action ... for an assault and battery, it is not essential that the ... infliction of the injury upon the plaintiff should be ... intended. Pizitz v. Bloomburgh, 206 Ala. 136, 89 So ... 287. And it can often be sustained by proof of a negligent ... act resulting in unintentional injury. Chapman v ... State, 78 Ala. 463, 464, 56 Am. Rep. 42; Peterson v ... Haffner, 59 Ind. 130, 26 Am.Rep. 81; 2 Greenleaf on ... Evidence, 16th Ed., 72, § 85 ... ...