Francis H. (Francis Hermann) Bohlen.

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the remedy.^

Nor is it alleged that appellant performed the act itself with
malice, but that he maliciously pretended to perform the operation,
for the purpose of improving the appearance of the eye, when he
well knew that such would not be the result. Nor is it averred that
the operation was maliciously performed, for the purpose of inflict-
ing pain and injury upon appellee. Had the averment been so made,
trespass might probably have been maintained. If, however, the
averment had been that the operation was so performed for the
purpose of cheating and defrauding appellee of her money, no one
could have doubted that the count was in case, and not in trespass.
The averment that the act was done falsely, would render it case.
The falsity of the action is the gist, and not the malice,_ as it was
not averred to have been designed to produce pain or injury. The
word "maliciously" may be rejected as surplusage, without chang-
ing the effect of the count.

The judgment of the court below is affirmed.

Judgment afHrmed.

^ See accord: Hegarty v. Shine, L. R. 4 Ir. 288 (1878), where the plaintiff,
who was the defendant's mistress, sought to recover in trespass for assault and
battery for venereal infection, claiming that though she had consented to inter-
course, her consent was procured by the defendant's fraudulent concealment
of his disease, and therefore the act of intercourse was an assault upon her.
The case is compHcated by the fact that the relations between the parties were
immoral and that there were no false statements made of existing fact but
merely concealment of a fact which, in view of the illegal relation of the par-
ties, there was no duty to disclose. But the opinions of the majority of the
judges in the Court of Queen's Bench and of all the judges in the Court of Ex-
chequer Chamber proceed on the broad ground that a fraud which induced
consent to an act whose nature was known did not vitiate consent so as to
make such an act an assault.

In Regina v. Clarence, 16 Cox C. C. 511 (1888), it was held that a hus-
band could not be convicted of a criminal assault upon his wife, by having
intercourse with her while to his knowledge he was infected with venereal
disease, she being ignorant of his condition.

The status of the criminal law on the subject is complicated and diffi-
cult. If the fraud deceives the victim as to the nature of the act, the con-
sent so obtained is no bar to criminal prosecution for assault or even rape,
Regina v. Case, 4 Cox C. C. 220 (1850). On the other hand, false state-
ments of the object or purpose of the act, or any other fact which mduces
consent to an act, the nature of which is fully understood, does not
vitiate consent so as to permit a conviction for rape or assault with intent
to rape, Regin-a v. Saunders. 8 C. & P. 265 (1838), though if the defend-
ant's object be to gratify his lascivious imagination at the expense of the



<^



WILLEY V. CARPENTER. J77

WILLEY V. CARPENTER.
Supreme Court of Vermont, 1891. 64 Vt. 212.

Trespass lor assault and battery. Heard on demurrer to the
defendant's second and third pleas at the December term, 1890,
Ross, Ch. J., presiding. Demurrer sustained. Exceptions by the
defendant, and cause passed to the Supreme Court before final
judgment.

The defendant in his second plea alleged in substance that at
various times and places the plaintifif had used concerning himself
and wife abusive and insulting language with intent to induce an
assault, and that finally, goaded to frenzy, he struck the plaintiff
a single blow, which was the battery complained of.

The third pica was like the second except that it in addition
alleged that the defendant was provoked to commit the assault by
the conduct of the plaintiff, and that the plaintiff had entered upon
this course of conduct wilfully with intent to provoke the plaintiff
to commit the assault in order that he might have an action against
him.

Thompson, J. This is an action of trespass for an assault and
battery.

If the facts set forth in the third plea are taken to amount to
a license by the plaintiff to the defendant to commit the alleged as-
sault and battery, such license is no defense to this action. 2 Greenl.
Ev. (loth Ed.), § 85; I Hill, on Torts (3 ed.) 183; i Bac. Abr.
(Bouv. Ed.) Assault and Battery, 372. The assaulting or beating
of one person by another is a breach of the peace and a misde-
meanor at common law as well as by R. L., § 4228, In Stoui v.
Wren, I Hawks 420 (9 Am. Dec. 653), the plaintiff and defendant
quarreled and agreed to fight and after they had gone out for that
purpose the defendant asked the plaintiff if he would clear him of
the law, and the latter said yes, whereupon the defendant beat him,
he making no resistance. The court say : "It is equally reasonable
and correct, that a man shall not recover a recompense for an injury
received by his own consent ; but the rule must necessarily be re-
ceived with this qualification, that the act from whence the injury
proceeded be lawful. Hence, in those manly sports and exercises
which are thought to qualify men for the use of arms, and to give
them strength and activity, if two played by consent at cudgels and
one hurt the other no action would lie. But where in an action for



modesty of the prosecutrix, her consent to expose her person to his view, if
fraudulently procured, will not bar a prosecution for assault. Rex v. Ros-
insky, 1 IMoody 19 (1824) ; Bartell v. State, 106 Wis. 342 (1900), and as to
the whole subject, see "The law as to consent," etc., by Theodore J. Gray-
son, 42 Am. L. Reg. N. S. 467 (1903).

As to the value of cases holding that the defendant is punishable crim-
inally, as authority for the existence of civil liability for similar acts, see
notes to Galbraith v. Fleming, 60 ]\lich. 403 (1886), and the opinions of the
judges in Hcqartv v. Shine, especially that of Fitzgerald, J., in the Queen's
Bench, L. R. 2 Ir., p. 282.



78 GALBRAITH V. FLEMING.

assault and battery, the defendant offered to give in evidence that
the plaintiff and he boxed by consent, from whence the injury pro-
ceeded, it was held to be no bar to the action, for as the act of
boxing is unlawful, the consent of the parties to fight could not
excuse the injury; Boulter v. Clarke Bull. N. P. 16."

Accord: McNeil v. Mullin, 70 Kans. 634 (1905) ; Jones v. Gale, 22 Mo.
App. 637 (1886); Grotton v. Glidden.. 84 Maine 589 (1892); Willey v.
Carpenter, 64 Vt. 212 (1891); Bell v. Hansley, 48 N. Car. 131 (1855); all
cases where the parties fought by mutual consent.

In Logan v. Austin, 1 Stewart 476 (Ala. 1828), the fact that the plain-
tiff had consented, on condition that he should not be prosecuted for mali-
cious mischief, that the defendant should beat him was held to be admissi-
ble in mitigation of damages but not to be a bar to the action. But see
State V. Beck, 1 Hill 363 (S. Car. 1833), where the facts were similar ex-
cept that the defendant did not suggest the whipping but inflicted it at the
plaintiff's request. Much stress is laid on the fact that the defendant did
not intend to injure the plaintiff, but on the contrary, "in order to save
him from what he considered a greater evil, reluctantly consented to in-
flict the stripes," and it is said that it may well be that where one gave an-
other a license to beat him, the license is void, because '"the person receiv-
ing the license entertained hostile dispositions against the other."



GALBRAITH v. FLEMING.
Supreme Court of Michigan, 1886. 60 Mich. 403.

Morse, J. The plaintiff sued defendant in trespass for dam-
ages growing out of an alleged assault and battery. Plaintiff brings
error. The plaintiff and defendant, who are brothers-in-law, met
at the store of Jeft'erson Galbraith, at Amadore, Sanilac county, on
the fourteenth day of July, 1882. The plaintiff was at the rear end
of the store, mailing some letters and reading newspapers, while
defendant was sitting upon the counter in the front part of the
store. The defendant called the plaintiff to account for some words
claimed by him to have been spoken by the plaintiff of defendant
and defendant's wife, at Lexington, the day before. A quarrel
ensued; the parties came together; blows were interchanged; and
in the fight the plaintiff got the worst of it, and was more or less
bruised and injured.

The court further instructed the jury that if the plaintiff vol-
untarily engaged in the fight in the first instance for the sake of
fighting, and not as a means of self-defense, he could not recover
unless the defendant beat him excessively or unreasonably. This
was as favorable to the plaintiff as the law will admit. The law does
not put a premium upon fighting, and one who voluntarily enters
into a quarrel will not be afforded relief forlTrs^own wrong in dam-
ages if he come out second best. While the voluntary act on the
part of the plaintiff would not preclude the state from punishing
him or the defendants for breach of the peace, it nevertheless pre-
vents him from bringing a civil action to recover comocnsation for
injuries received by his own seeking, and in violation of law.

In this case the jury found specially that the plaintiff' voluntarily



REID V. MITCHELL. 79

engaged in the fight with the defendant ; that he used language in-
viting a fight, and for the purpose of bringing on an attack.

The evidence, in our opinion, justified these findings. The
plaintiff's case was without merit, and the judgment below is af-
firmed, with costs of both courts.

The other Justices concurred.

So in Rcgina v. Coney, 15 Cox C. C. 46 (1882), Hawkins, J., says (p.
60) : "It may be that consent can in all cases be given so as to operate as
a bar to a civil action, upon the ground that no man can claim damages for
an act to which he himself was an assenting party : (Christopucrson v.
Bare, 11 Q. B. 473.) That case, however, was decided upon a point of
pleading, and must not be considered as a direct authority on this subject.
It is not necessary, however, upon the present occasion to express any de-
cided opinion upon the point, for, whatever may be the effect of a consent
in a suit between party and party, it is not in the power of any man to give
any effectual consent to that which amounts to, or has a direct tendency to
create a breach of the peace, so as to bar a criminal prosecution. In other
words, though a man may by his consent debar himself from his right to
maintain a civil action, he cannot thereby defeat proceedings instituted by
the Crown in the interests of the public for the maintenance of good order :
(per Burrough, J., in Rex v. BcUingliam, 2 Car. & P. 234.) He may com-
promise his own civil rights, but he cannot compromise the public inter-
ests."

Sir Thomas Ball, L. C, in Hegarty v. Shine, L. R. 4 Ir. 288, at p. 293,
says: "Considerations affect prosecutions not applicable to civil actions.
In the former we are concerned with public interests and consequent pub-
lic policy; in the latter, with the reciprocal rights and liabilities of indi-
viduals. Mutual consent to a prize-fight might prevent the pugilists having
a remedy inter se; but would not make it the less a breach of the peace,
or exonerate those engaged in it from punishment."

See also. Young, J., in Spead v. Tomlinson, 73 N. H. 46 (1904), as to
the effect of contributory negligence of a person killed, which would ad-
mittedly bar his right to damages had he been merely injured, upon a prose-
cution for manslaughter by negligence, and holding that the plaintiff's
consent to follow the advice of a Christian Science healer and "abide by
the result of his prayers" was an answer to her claim for damages for his
negligent treatment of her ailment while not necessarily a bar to a prosecu-
tion for manslaughter had she died.



REID V. MITCHELL.
Court of Session^ 1885. 12 Session Cases, 1129.

In November 1884 James Reid, crofter, Greystone. in the par-
ish of Skene, Aberdeenshire, brought an action in the Sheriff Court
^t Aberdeen against Alexander Mitchell, crofter, Lyne of Skene,
in the same parish, praying for £300 in name of solatium and dam-
ages for bodily injuries sustained by the pursuer.

The pursuer stated that on the 15th ]\Iarch 1884 he and the
defender, along with two other men, were engaged in the employ-
ment of Mr. Hamilton of Skene, in building a stack of straw in the
home farm of Skene, when the defender wilfully, recklessly, and
carelessly seized the pursuer by the shoulder, and pushed him off



8o REID T. MITCHELL.

the stack, so that the pursuer fell backwards to the ground, alight-
ing on his head.

The defender answered "that, as is usual in such circuin-
stances, the pursuer and defender, together with William Machray
and Samuel Copland, the other two men on the top of the stack,
were frolicking with the straw as it came on the stack, and the
defender accidentally knocked against the pursuer, and both fell
to the ground. There was no intention on the part of the defender
to push the pursuer ofif the stack. Their fall was a pure accident."

On 4th February 1885 the Sheriff-substitute (Dove Wilson)
pronounced this interlocutor: — "Finds in fact that, on the occa-
sion set forth in the petition, the pursuer was injured through the
fault of the defender: Finds in law that the defender is liable in
damages : assesses the same at the sum of £50 sterling, and discerns
against the defender for that sum: Finds the pursuer entitled to
expenses," &c.

The defender appealed to the Sheriff (Guthrie Smith) who
on 4th April, recalled his Substitute's interlocutor ; found it proved
that, on the occasion libelled, while the pursuer was engaged with
some others in building a stack of straw, he was unintentionally
pushed oft" the stack, and fell and injured himself, but not through
the fault of the defender; therefore assoilzied the defender from
the conclusions of the action ; found no expenses due, and decerned.

The pursuer appealed.

Lord Justice-Clerk. — This case discloses a very unhappy
affair, all the more that the defender probably had not the smallest
intention of injuring anyone. It was a foolish and ridiculous romp
of four men on the top of a stack of straw, which they were en-
gaged in making, and the result was, that the pursuer, who was
engaged in building the stack, but who does not appear to have
been taking the least share in the romping, fell off the stack to the
ground and was very seriously hurt. I think it is very clearly proved
that the defender caused his fall, whether he intended to make
him join in the frolic or not, and that from the momentum he ac-
quired from the somewhat elastic footing of the straw he went
against him with considerable force and so pushed him over the
stack. The Sheriff-substitute has decided in favor of the pursuer,
and I agree with him. The Sheriff, on the contrary, thinks that
as there was no intention on the part of the defender to do the pur-
suer any injury, and as they were engaged in a frolic, to which the
pursuer showed no objection, the defender is not liable. I am un-
able to concur in that view. Reid, the pursuer, was_ amused no
doubt at his companions, but he was working, not larking. It was
manifestly a dangerous proceeding, and those who engaged in it did
so at their own risk, but Reid did not engage in it, and consequently
did not undertake the risk. I therefore think that we should revert
to the judgment of the Sheriff-substitute.

When people engage in a game involving risk, or a game gen-
erally safe, but in which accidents may happen, every player taking
part in it takes on himself the risks incident to being a player, and



REID V. MITCHELL. Si

he will have no remedy for any injury he may receive in the course
of it, unless there has been some undue violence or unfair play
on the part of some of the others. He takes the risks incident
to the game, and the result of these risks must lie where they fall.^
I should say that the same principle must govern where romping
suddenly arises among people collected together, whether workpeople
or others — they take the risk of the romping, and unless there is
foul play there will be no liability for unintended injury by one
romper to another. I should even go the length of saying that if
two men voluntarily engage in a pugilistic encounter, each must
take the black eyes or the bloody noses which the other inflicts —
or if two men voluntarily engage in a bout of single stick, each
must take the raps he gets from his opponent, — and if there be no
foul play there can be no injury giving rise to a claim of damages
by the one against the other. We meet in the criminal courts with
the case in which the death of one of the parties is the result of a
fair fight. The surviving combatant is guilty of culpable homicide,
because he was engaged in a breach of the peace, but if the fight
has been perfectly fair the punishment is usually almost nominal.
Here there was a romp going on — which had sprung up as we all
know how — but I think it is according to the evidence that the pur-
suer took no part in it, and therefore did not incur the risks incident
to it, yet the defender, as I think, attacked the pursuer and threw
him over — technically he assaulted him, although he did it play-
fully and without any bad intention, for if a man playfully attacks
another to make hirn eng^age_iil_sport, I am of Gprnion that that is
an assault, and if harm results that constitutes an actionable wrong.
I therefore agree that we should revert to the Sheriff-substitute's
judgment.

The Court pronounced the following interlocutor: — "Find in
fact that the injury sustained by the pursuer, on the occasion set
forth in the petition, was caused by the fault of the defender:
Find in law that the defender is liable to the pursuer in damages :
Therefore sustain the appeal: Recall the judgment of the Sheriff ap-
pealed against: Affirm the judgment of the Sheriff-substitute, and
of new ordain the defender to make payment to the pursuer of the
sum of £50 sterling, thereby found due in name of damages, with
interest thereon at the rate of 5 per cent per annum from the 4th
day of February last till payment : Find the pursuer entitled to ex-
penses in the inferior Court and in this Court: Remit," &c.-



^ See Fitcgerald v. Cavtn, 110 Mass. 153 (1872), as to what constitutes
undue violence in plav or "fooling"; and see Haffner v. Peterson, 59 Ind.
130 (1877).

^Accord: Marklev v. Whitman, 95 Mich. 236 (1893); Reynolds v.
Pierson, 29 Ind. App. 273 (1902).



6 — Bohlen's Cases. Vol. I.



82 STEVENS v. o'NEILL.

(b) False imprisonment.



STEVENS z: O'NEILL.
Appellate Division, Supreme Court of New York, 1900. 51 App. Div. 364.

Van Brunt, P. J. This action was brought to recover damages
for an alleged false imprisonment. The answer was in effect a gen-
eral denial. The questions raised upon this appeal may be embraced
within two classes : First, whether there was evidence enough to
justify the jury in finding that there was any false imprisonment ;
and, second, whether there were any errors committed in the charge
of the learned justice who tried the case.

It is claimed upon the part of the defendant that there was no
evidence that any restraint was exercised by him or his employes
as against the plaintiff, and that her submission to search was en-
tirely voluntary upon her part. It appears from the evidence of the
plaintiff that she visited the store of the defendant in the city of
New York on the 15th of December, 1897; that she went to the
jewelry counter and asked the salesgirl to show her some watches.
The girl showed her some which were very bright in color, and the
plaintiff then asked if she had not some more subdued in char-
acter and the girl said. No. "Then she counted the watches ; she
said there was so many in the case when I showed them to you :
'now,' she says, 'there is one missing.' 'Well,' I said, 'probably you
have sold the watch,' never thinking she thought I was the thief.
Then she sent for the floorwalker and then he sent for the detective
and she said I would have to be searched." The plaintiff repeated
the testimony that when the woman detective came up she said :
"You will have to be searched ;" that then the detective sent for a
man and they took the plaintiff through the store between this man
and the detective to the elevator and went upstairs into a small
room, where she was searched.

It is claimed upon the part of the appellant that the plaintiff
asked to be searched upon the supposition that she was suspected
of being the thief ; and that she was willing and submitted to search
for the purpose of clearing herself from suspicion, and that no re-
straint whatever was exercised upon her by any of the employes
of the defendant.

It seems to us, when we consider the situation of the plaintiff,
that she was in the store of the defendant, surrounded by persons
who were employed by the defendant to detect crime, substantially
accused of being a thief, and with the statement made to her "you

will have to be searched,"' thg t thic; wag thp pyprri'^p nf^nrli^n do-
niinlQnjDxer.her that the jury might very properly find that restraint
was exercised, and that the subsequent proceedings were simplv
carrying out'the threat that they would search her. Under stic'i
circumstances the plaintiff was certainly _not required to offer



STEVENS V. O'NEILL. 83

physical resistance to this unjustifiable proceeding against her. The
— jrrry^lu'ihg resolved this question in her favor, there seems to be
no ground whatever for this court to interfere. The authority of the
employes of the defendant is established beyond peradventure by
the testimony of the defendant himself. These were the agencies
employed by him for the protection of his property ; and these peo-
ple, in the proceedings taken by them, were acting clearly within the
scope of the authority which had been conferred upon them.

We now come to the requests to charge. There are a large
number of these requests, which the court refused to charge further
than he had already charged. Upon an examination of these
requests it will be seen that they are all embraced within one proposi-
tion, namely, that the plaintiff can not recover unless she proves that
she was detained. Various requests were made ; among them that
"the plaintiff has sworn that she went willingly to the room, where
she claims she was searched." In regard to this proposition, it is
apparent from the evidence that it was a question for the jury to
determine whether the plaintiff was detained or not. The jury were
not bound to find that she went willingly to the room to be searched,
simply because she did not actually resist. She was surrounded by
superior force, to contend beyond which was beyond her physical
powers, and she had been told what she had to do, and she sur-
rendered unconditionally ; and that is all there is in the case as to her
submission and willingness to be searched. The jury found such
to be the facts, as they probably were. Under these circumstances
the court was justified in refusing to charge such a request. The
court had expressly charged that the claim against the defendant was
for false arrest and imprisonment, and that the first question to be
decided by the jury was whether there was an arrest. Then the
court defines what false imprisonment is, namely, unlawful restraint
of a person contrary to his will ; and further charges the jury that if
a person insists upon proving her innocence of an accusation ex-
pressed or implied, by exhibiting the contents of her pockets or her
satchel, and goes voluntarily to a room for that purpose, the mere
act of accompanying her there for such purpose by one or more
persons would not constitute either arrest or imprisonment.^ Here
was clearly placed before the jury the fact that there must be a



^ See accord: Grcathousc v. Summcrficid, 25 111. App. 296 (1887);
Hershey v. O'Neill, 36 Fed. 168 (1888) ; and Kirk & Son v. Garret, 84 -Md.
383 (1896).

In Arrowsmith v. Lc Mcsurier, 2 Bos. N. R. 211 (1806), it was held
that where a constable shewed the warrant to the plaintiff, but took no
further steps and the plaintiff' then accompanied the constable before the
magistrate, was examined and discharged, a verdict of not guilty was justi-
fied, Mansfield, J., saying that "the warrant was made no other use of than
as a summons," see criticism of this case bv Willis, J., in IVariicr v. Rid-
diford. 4 C. B. (N. S.) 180 (1858), p. 204, and Wilcox, J., in Pike v. Hau-
sou. 9 N. H. 491 (1838). In Trcscott v. IVaterloo. 26 Fed. 592 (1885), and