Western Union Telegraph Co. v. Hill

• Decision Date: 30 June 1933
• Docket Number: 8 Div. 690.
• Citation: 25 Ala.App. 540,150 So. 709
• Parties: WESTERN UNION TELEGRAPH CO. v. HILL.
• Court: Alabama Court of Appeals

150 So. 709

25 Ala.App. 540

WESTERN UNION TELEGRAPH CO. v. HILL.

8 Div. 690.

Court of Appeals of Alabama

June 30, 1933

Rehearing Denied Sept. 12, 1933.

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Action for damages for assault by J. B. Hill against the Western Union Telegraph Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Western Union Telegraph Co. v Hill, 150 So. 711.

Cabaniss & Johnston, of Birmingham, and Cooper & Cooper, of Huntsville, for appellant.

Griffin & Ford, of Huntsville, for appellee.

SAMFORD Judge.

The action in this case is based upon an alleged assault on the person of plaintiff's wife by one Sapp, an agent of defendant in charge of its office in Huntsville, Ala. The assault complained of consisted of an attempt on the part of Sapp to put his hand on the person of plaintiff's wife coupled with a request that she come behind the counter in defendant's office and that, if she would come and allow Sapp to love and pet her, he "would fix her clock."

The first question that addresses itself to us is, Was there such an assault as will justify an action for damages?

Blackstone's definition of an assault is: "An attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in a threatening manner; or strikes at him but misses him." As observed by Gaynor, J., in Prince v. Ridge, 32 Misc. 666, 66 N.Y.S. 454, this is not a complete definition, but is sufficient to serve as an illustration of the nature of an assault which will support an action.

In this state an assault and battery is: "Any touching by one person of the person of another in rudeness or in anger." Seigel v. Long, 169 Ala. 79, 53 So. 753, 754, 33 L. R. A. (N. S.) 1070; Jacobi v. State, 133 Ala. 17, 32 So. 158.

While every battery includes an assault, an assault does not necessarily require a battery to complete it. What it does take to constitute an assault is an unlawful attempt to commit a battery, incomplete by reason of some intervening cause; or, to state it differently, to constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. 5 Corpus Juris, 615 (1); Prince v. Ridge, 32 Misc. 666, 66 N.Y.S. 454.

Solicitation by a man to a woman for intercourse unaccompanied by an assault is not actionable. Davis v. Richardson, 76 Ark. 348, 89 S.W. 318; Reed v. Maley, 115 Ky. 816, 74 S.W. 1079, 62 L. R. A. 900, 2 Ann. Cas. 453. Insulting words used when not accompanied by an assault are not the subject of an action for damages. Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516.

What are the facts here? Sapp was the agent of defendant and the manager of its telegraph office in Huntsville. Defendant was under contract with plaintiff to keep in repair and regulated an electric clock in plaintiff's place of business. When the clock needed attention, that fact was to be reported to Sapp, and he in turn would report to a special man, whose duty it was to do the fixing. At 8:13 o'clock p. m plaintiff's wife reported to Sapp over the phone that the clock needed attention, and, no one coming to attend to the clock, plaintiff's wife went to the office of defendant about 8:30 p. m. There she found Sapp in charge and behind a desk or counter, separating the public from the part of the room in which defendant's operator worked. The counter is four feet and two inches high, and so wide that, Sapp standing on the floor, leaning against the counter and stretching his arm and hand to the full length, the end of his fingers reaches just to the outer edge of the counter. The photographs in evidence show that the counter was as high as Sapp's armpits. Sapp had had two or three drinks and was "still slightly feeling the effects of whisky; I felt all right; I felt good and amiable." When plaintiff's wife came into the office, Sapp came from towards the rear of the room and asked what he could do for her. She replied: "I asked him if he understood over the phone that my clock was out of order and when he was going to fix it. He stood there and looked at me a few minutes and said: 'If you will come back here and let me love and pet you, I will fix your clock.' This he repeated and reached for me with his hand, he extended his hand toward me, he did not put it on me; I jumped back. I was in his reach as I stood there. He reached for me right along here (indicating her left shoulder and arm)." The foregoing is the evidence offered by plaintiff tending to prove an assault. Per contra,...