CHAPTER II.

CIVIL REDRESS FOR WRONGS TO PERSONAL SECURITY.

Sec. 401-35. SCOPE OF CHAPTER.-As has been seen, personal security includes the right to the uninterrupted enjoyment by a person of his life, limbs, health and reputation. And we shall see that these are infringed by assaults, batteries, false imprisonment, malicious prosecution, slander and libel. It is the civil action given by the law to the persons injured against the wrongdoer for committing any of these illegal acts that is to be considered in this chapter.

Sec. 401-36.a. OF CIVIL REDRESS FOR ASSAULTS AND BATTERIES.-Any attempt with unlawful force, to injure the person of another, so near that harm might ensue if the party was not prevented, amounts to an assault. And a successful assault becomes a battery. So that, to constitute an assault and battery all that is necessary is some hurt or injury to the body, however slight, accomplished with violence, or in a rude, angry or revengeful manner. Intent to do the injury is a necessary ingredient in an assault and battery, and

8 See, Sec. 401-7, ante. See also, Vol XI, Chadman's Cyclopedia of Law, for the redress of their infringements as crimes.

People v. Lillie, 43 Mich. 521; Brezinsky v. Tierney, 60 Conn. 55; 1 Hawk. P. C. 263; Fitzgerald v. Fitzgerald, 51 Vt. 420; White v. Kellogg, 119 Ind. 320; State v. Neeley, 74 N. C. 425; Collins v. Butler, 179 N. Y. 156.

without it the offense is not complete. But here, as in the case of commission of any tort, it is not the precise injury inflicted that must have been intended, as one is responsible for the outcome of his wrongful acts, though the harm done is greater or different from that intended. So where one hurls a missile into a crowd, or in driving away trespassers throws a stick at one and injures another, he is liable for the battery upon the person struck."

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But in defense of self, family or property, one is justified in using sufficient force to repel the attack or protect the property, and the limitation of the justification in such cases is that of reasonable necessity under the circumstances, and if excessive force is used, the party becomes a trespasser, and the assailant may recover damages from him for repelling the assault with unnecessary violence.1 Mere words, though abusive, do not constitute an assault, and will not justify the use of force in protection against them, as a general rule, but by some authorities they are allowed to be offered in evidence in

10 Scott v. Shepherd, 2 W. Bl. 892; Peterson v. Haffner, 59 Ind. 130; Talmadge v. Smith, 101 Mich. 370; Vosburg v. Putney, 80 Wis. 523.

1 Cockcroft v. Smith, Salk. 642; Dole v. Erskine, 35 N. H. 503; Trogden v. Henn, 85 Ill. 237. Where excessive force is used in repelling an attack, each party has an action against the other, the one for the original assault, and the other for the assault which began with the excessive use of force. Dole v. Erskine, supra. In other cases it is said only the one who has been the victim of the excessive force can recover by a civil action. Elliot v. Brown, 2 Wend. 497. But see, Gutzman v. Clancy, 114 Wis. 589.

mitigation of damages, both actual and punitive.2 In defense of self, family, or possessions, it must be the present actual injury that is threatened which one is justified in repelling; and redress, or revenge after the danger has been repelled is no part of the individual's rights in such cases.3

While the wrongful act in an assault and battery implies that it is against the wish or assent of the party injured, and that generally an assent to an injury is a good defense to an action for damage under the maxim Volenti non fit injuria, yet it is held that as the life and security of an individual are guarded in the interest of the state as well as that of the individual himself, and the commission of these acts constitute a breach of the peace, he cannot assent to such an injury, and though he assent in fact, as by agreeing to a prize fight or duel, it is no justification to the other party. "Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not depriving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other. The exception to this general rule embraces only those cases in which that to which assent is given is matter of indiffer

2 Hayes v. Sease, 51 S. C. 534; Berkner v. Dannenberg, 116 Ga. 954. In some case the abusive language can only be shown in mitigation of punitive damages. Mahoning Valley Ry. Co. v. De Pascale, 70 Ohio St. 179; Mitchell v. Gambill, 140 Ala. 316.

3 Miller v. State, 74 Ind. 1; Tucker v. Walters, 78 Ga. 232; Erwin v. State, 29 Ohio St. 186; State v. Gibson, 10 Ired. 214; State v. Boynton, 76 Ia. 753; Barr v. Post, 56 Neb. 698.

ence to public order; such as slight batteries in play or lawful games, such unimportant injuries, though they constitute technical wrongs, may well be overlooked and excused by the party injured, if not done of deliberate malice. But an injury, even in sport, would be an assault if it went beyond what was admissible in sports of that sort, and was intentional."4

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The relation of parent and child, and teacher and pupil, afford the parent and the teacher the general right of inflicting corporal punishment to an offending child without being guilty of an assault, but this right is limited to such reasonable chastisement as the occasion demands, having regard to the age, sex, size and strength of the child punished. In the case of the teacher the right is restricted to the limits of his jurisdiction as a teacher, and does not extend to a correction of the child for offenses committed when away from the school. For any cruel, malicious or excessive punishment the teacher will become liable, and so the parent may become liable for the like excessive use of force on his child, to the state for a criminal assault."

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* Lund v. Tyler, 115 Ia. 236; Cooley on Torts, 188; Peterson v. Haffner, 59 Ind. 130.

5 State v. Thornton, 136 N. C. 610; Boyd v. State, 88 Ala. 169; State v. Boyer, 70 Mo. App. 156; Hornbeck v. State, 16 Ind. App. 484; McKelvey v. McKelvey, 111 Tenn. 388; Harris v. State, 115 Ga. 578.

* State v. Long, 117 N. C. 791; Fox v. People, 84 Ill. App. 270; Treschman v. Treschman, 28 Ind. App. 206. In the last case a stepmother was held liable to her stepchild for a malicious assault.

In all cases, the use of excessive force in repelling attack, or in the protection of property or family, as well as in the chastisement of a child by a parent or teacher is for the jury to determine as a question of fact. Akin to the employment of excessive force is the use of ferocious dogs and traps and spring guns in the protection of one's premises from trespassers, and while these may not be unlawful in their employment, yet in case they inflict serious damage or cause the death of some one, the punishment is clearly excessive, and consequently unjustifiable, so that the person responsible for the injury would be held liable both civilly and criminally.8

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For an unjustifiable assault, or assault and battery, the injured person is entitled to recover for the insult and indignity to his feelings, and this may prove the chief source of damage in many cases. He is also entitled to punitive damages for the wilful or malicious act, but it is held that where the offender has previously been convicted in a criminal proceeding for the same offense, it may be shown in mitigation of the punitive damages in the civil suit.10

7 Morris v. Platt, 32 Conn. 75; Paxton v. Boyer, 67 Ill. 132; Com. v. Mann, 116 Mass. 58; Currier v. Swann, 63 Me. 323.

8 State v. Moore, 31 Conn. 479; Hooker v. Miller, 37 Ia. 613; Aldrich v. Wright, 53 N. H. 398; State v. Dixon, " Id. 518; State v. Vance, 17 Ia. 138; Grant v. Haas, 31 Tex. Civ. App. 688.

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9 Cooper v. Hopkins, 70 N. H. 271; Reeden v. Evans, 52 Ill. App. 209.

10 Wagner v. Gibbs, 80 Miss. 53; Rhodes v. Rodgers, 151 Pa. St. 634; Jackson v. Wells, 13 Tex. Civ. App, 275.