Francis H. (Francis Hermann) Bohlen.

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tended to cause discomfort or annoyance do not constitute an assauh, Stjarns
V. Sampson, 59 Maine 568 (1871), the defendant in order to evict a tenant



THE UNITED STATES V. ORTEGA. 23

First, That the least touching of another in anger is battery.^
Secondly, If two or more meet in a narrow passage, and, with-
out any violence or design of harm, the one touches the other gently,
it will be no battery.

Thirdly, If any of them use violence against the other, to force
his way in a rude, inordinate manner, it will be a battery ; or any
struggle about the passage to that degree as may do hurt will be a
battery.^



THE UNITED STATES v. ORTEGA.
Circuit Court of the United States, Third Circuit, 1825. 4 JVash. C. C. 531.

The defendant was indicted for an assault upon the person of
Mr. Salmon, the Spanish charge d'affaires, and for infracting the
law of nations by committing violence upon his person. These
charges were contained in two separate indictments, both of which
were tried at the same time.

The facts of the case, as proved by Mr. Salmon, (who pre-
sented himself to the court as a voluntary witness), were as follows.
On the night of the 17th of September last, whilst the witness was
returning from the circus, he heard steps of some person walking
gently behind him. The defendant came up to him, and seizing the
breast of his coat, said, angrily: Mr. Salmon, I am Ortega, you
have insulted me, and I seek satisfaction. The answer was, I have
not insulted you, but you now insult me — let me go. No, replied
the defendant, I have got you now, and I will not let you go, unless
you promise to give me satisfaction, for you have published many
falsehoods against me. Mr. Salmon replied, that he had published
nothing against him but in answer to a very insulting manifesto of
his against all kings, and especially against his government. He
further added ; it is so long after your arrival that you seek satis-
faction for an old oft'ence ; and is this the way you demand it?
Have you no friend to send on such an errand? You know who I



who refused to leave after the term expired, removed the doors and windows
and turned a blood-hound loose in the house; but see IVood v. Young, 20
Ky. L. R. 1931 (1899), contra.

^ It is not necessary that the touching should be in anger — any intentional
interference with another's person, not consented to by him and unwarranted
by the usages of decent society and offensive to a reasonable sense of person-
al dignity, is a battery; S pence v. Duffy, 1 Rogers' City Hall Recorder 39 (N.
Y. 1816), a shop man took hold of a customer's arm to lead her back to th?
shop to take and pay for goods cut from a piece at her request: Richmond
v. Fisk, 160 Mass. 34 (1893), a milk-man intruded into the plaintiff's bedroorn
against his express command and shook him to awaken him so that he might
present his bill.

^ So one engaging on a public highway in concert with others in a stu-
dents* "rush," conduct reasonably calculated to injure a person thereon, is
guiltv of a batterv upon one thrown down and injured bv him, Marklev v.
Whitman. 95 Mich. 236 (1893); see also Rcxnolds v. Picrson, 29 Ind. App.
273 (1902), 64 N. E, 484, note to Clark v. Downing, 55 Vt. 259 (1882). 45
Am. Rep. 612.



24



THE UNITED STATES V. ORTEGA.



?



am and where I live. The defendant, still retaining his hold, Salmon
again desired him to let him go, threatening to strike him if he did
not. The defendant answered, You need not strike me, for I shall
fight you in another place; and then inquired if he had any arms
with him? Mr. Salmon replied that he had not, for he professed
to be a peaceable man. The defendant observed, that he had none
either, but that he could easily procure them, if Mr. Salmon would
fight.i

Charge, Washington, J. There are two questions for your
consideration. I. Is the charge, that an assault was committed by
the defendant upon the person of Mr. Salmon, sufficiently proved?
If it be, then, 2. Was Mr. Salmon a public minister at the time the
assault was made ?

I. (After summing up the evidence as before stated, the judge
proceeds.) It was argued by the counse'l for the defendant, that,
to constitute an assault, it must be accompanied by some act of vio-
lence. The mere taking hold of the coat, or laying the hand gently
upon the person of^ another, it is said, does not amount to this
ofifence ; and that nothing more is proved in this case, even by Mr.
Salmon. It is very true that these acts may be done, very inno-
cently, without offending the law. If done in friendship, for a
benevolent purpose, and the like, the act would certainly not amount
to an assault.2 But these acts, if done in anger, or a rude and in-
solent manner, or with a view to hostility, amount, not only to an
assault, but to a battery. It is then for you to say whether, from
the evidence which has been given in the cause, Mr. Salmon was



^ So much of the facts and the charge of the jury as relate to the infrac-
tions of the law of nations by committing assault upon Mr. Salmon as Span-
ish charge d'affaires, are omitted.

''Accord: Buller's Nisi Prius, p. 16, citing Short v. Lovejoy, coram Lee,
C. J., Guildhall 1752, "If a man wantonly do an act by which another man is
hurt,' as by wantonly pushing a drunken man, he will be answerable in an
action of Assault and Battery, but if he intend doing a right act, as to assist
such drunken man, or to prevent him from going along the street without
help, and in so doing, harm do ensue, he will not be answerable;" Hoffman
V. Eppers, 41 Wis. 251 (1876), where the defendant had aroused the plam-
tiff from a drunken slumber and assisted in taking him into the street and
started for a justice's court where the plaintiff had been_ summoned to appear
as a witness in a suit there pending, on the way the plaintiff became obstrep-
erous and was arrested as drunk and disorderly, taken before a magistrate
and fined. It was said by Lyon, J., that "It was certainly lawful for the
defendant to arouse the plaintiff from his drunken slumber and assist him to
the court where his presence was required as a witness, and if the defendant
did this as a friendly act, in a gentle and friendly manner and with an honest
purpose to do the plaintiff no injury but only to aid him to reach the court, he
is not liable to respond in damages for such acts ;" citing Greenleaf on Evi-
dence, § 85. Where, however, the interference with the plaintiff's person is
unwarranted, the defendant is liable though he acted without anger, in per-
fect good nature and from the best motives, Johnson v. McConnel, 15 ^ern.
293 (N. Y. 1878), defendant broke the plaintiff's leg trying to stop a scuffle in
which the latter, while drunk, was engaged with a third person.

See also Coward v. Baddlev, 1 Car. & Kerwan 257 (1844), where it was
held that the mere touching of another not hostilely but merely to attract his
attention "whether the subject of a civil action or not" was not a criminal as-
sault and battery justifying giving the person doing so into custody.



CLARK V. DOWNING. 25

seized, or laid hold of, by the defendant, in kindness and for a
justifiable cause, or in anger and with hostile intentions? If the
latter, it is an unquestionable case of assault and battery.

The jury returned with a verdict finding the defendant guilty.



CLARK V. DOWNING.
Supreme Court of Vermont, 1882. 55 Vt. 259.

Trespass for assault and battery. Verdict for the defendant.

The plaintiff's testimony, which the defendant contradicted as
to the alleged assault, was that after the defendant had ordered the
plaintiff to leave his premises, the plaintiff replied, he would as soon
as he could, and immediately started for his horse and unhitched it
and he and his daughter got into the wagon and were going away,
when the defendant caught hold of the horse, kicked it, and struck
it over the back several times with a board.

The defendant's evidence tended to contradict the plaintiff's
testimony and the plaintiff asked the court to charge that'tfie de-
fendant had struck the horse,- as the plaintiff's testimony" tended
to show, this would be an assault upon the plaintiff, for which he
would be entitled to recover. The court did charge that beating the
horse was an aggravation of the assault upon the plaintiff, if he was
assaulted ; but as an independent act was not a personal assault for
which alone recovery could be had ; that under the declaration re-
covery could be had for beating the horse only in case the jury found
the plaintiff was personally assaulted.^

RoYCE, Ch. J. The only other exception taken was to the
refusal of the court to charge as requested. The evidence referred
to in the exceptions, and upon which the request was predicated,
and the question of what in law constitutes an assault, have to be
considered in deciding whether the request should have been com-
plied with or not. It appears that the evidence as to what transpired
at the time and upon the occasion when it was claimed that the
assault was committed was conflicting, and the request was based
upon the supposition that the jury might find the facts as the plain-
tiff's evidence tended to show.

Admitting that the jury might so find, did the striking of the
plaintiff's horse constitute an assault upon the plaintiff? It is not
necessary to constitute an assault that any actual violence be done to
the person. If the party threatening the assault have the ability,
means, and apparent intention, to carry his threat into execution,
it may in law constitute an assault. The disposition, accompanied
with a present ability to use violence, has been held to amount to an
assault. Where violence is used it is not indispensably necessary
that it should be to the person. It was decided in Hopper v. Reeve,



^ Only so much of the facts and the charge of the Court is given as re-
lates to the question as to whether or not the striking of the horse consti-
tuted a personal assault upon the plaintiff.



26 GERATY V. STERN.

7 Taunt. 698, that the upsetting of a chair or carriage in which a per-
son was sitting was an assault ; in Morton v. Shoppee, 3 C. & P.
27T,, that riding after a person at a quick pace and compelling him
to run into his garden to avoid being beaten was an assault ; that the
striking of the horse upon which the wife of the plaintiff was riding
was an assault upon the wife, i Stephens N. P. 210.

An assault is defined in Hays v. The People, i Hill (N. _Y.)
351, to be an attempt with force or violence to do a corporal injury
to another. The striking of the plaintiff's horse in the manner that
his evidence tended to show would probably result in a corporal
injury to him; hence, the request should have been complied with.

The case should have been submitted to the jury for them to
find whether the striking was as the plaintiff claimed it to have been,
or in the manner and for the reasons indicated in the defendant's
plea.

Judgment reversed, and cause remanded.

Accord: Dowdell v. Burford, 1 Mod. 24 (1650), where the defendant
struck, apparently intentionally, the horse on which the plaintiff's wife was
riding, causing it to run away and throw her off and injure her; Dubuc de
Marentille v. Oliver, 1 Pennington 275 (N. J. 1808), plaintiff struck with a
stick a horse attached to carriage in which the plaintiff was seated and
caused him damage to the amount of fifteen dollars ; Bull v. Colton, 22 Barb.
94 (X. Y. 1856)." See also Revnolds v. Pierson, 29 Ind. App. 273, 64 N. E.
484 (1902), where the plaintiff, an old man, who was holding on to the arm
of a friend, was thrown down and injured by the boisterous manner in which
the defendant seized hold of the friend as a sort of a friendly greeting, a
form of "horse play," which, while the court condemned it, was customary
between them, the court holding that "there was such a reckless disregard of
consequences as to imply an intention to assault the plaintiff." But see Kirk-
land V. State, 43 Ind. 146 (1873), where an instruction, that the defendant was
guilty of an assault, if he struck the prosecutor's horses while he v/as driv-
ing them, was held error, but there was no evidence that the prosecutor was
in the wagon or holding the lines, so that, as the court said, he might have
been driving them "by words of command." In the following cases trespass
n et armis, not assauk and battery, was held to lie where there were unin-
tentional collisions between carriages producing injury to the occupants. Hop-
per V Reeve, 7 Taunton, 698 (1817); Spear v. Chapman, 8 Ir. L. R. 461
(1846) ; Bur dick v. Worrall, 4 Barb. 596 (N. Y. 1848).



GERATY V. STERN.
Supre Court of New York, 1883. 30 Hun 426 {N. Y.)

Dykman, J. The defendants are in the city of New York, and
this action is brought against them to recover damages for ill treat-
ment amounting to an assault, alleged to have been received by the
plaintiff at the hands of the employes of the defendants.

The jury was justified in finding from the testimony that the
plaintiff went to the defendants' store in New York city to purchase
an ulster for herself, that after she had examined one and had it on
her person preparatory to its purchase, a person in the employ of the
defendants in the store, who is called a floor-walker, approached the
plaintiff and told her that she did not want to purchase the garment,



COMER V. KNOWLES. 2/

and used language to indicate that she was a spy from a rival
house, and directed the saleswoman to take the cloak from off the
plaintiff, which was done.

This was an indignity and a wrong to the plaintiff for which
legal liability attaches to some one. It amounted to an assault,
which is well defined as an unlawful setting upon one's person.^
Are the defendants responsible in the law for this misconduct of
their employes? The liability of masters is not measured entirely
by their instructions to their servants. If the act of the servant be
within the scope of his authority, and committed in his master's
business, the latter is responsible. (Higgins v. Watervliet Turnpike
Co., 46 N. Y. 23, 7 Am. Rep. 293.) ^



SECTION 3.

False Imprisonment.



COMER V. KNOWLES.

Supreme Court of Kansas, 1877. 17 Kans. Rep. 436.

Valentine, J. : False imprisonment is necessarily a wrongful
interference with the personal liberty of an individual. The wrong
may be committed by words alone, or by acts alone, or by both,
and by merely operating on the will of the individual, or by personal
violence, or by both. It is not necessary that the individual be con-
fined within a prison, or within walls ; or that he be assaulted, or
even touched. It is not necessary that there should be any injury
done to the individual's person, or to his character, or reputation.
Nor is it necessary that the wrongful act be committed with malice,
or ill-will, or even with the slightest wrongful intention. Nor is
it necessary that the act be under color of any legal or judicial pro-
ceeding. All that is necessary is, that the individual be restrained
of his liberty without any sufficient legal cause therefor, and by
words or acts which he fears to disregard. It will therefore be
seen that the wrong constituting false imprisonment differs essen-



\4ccord: Respublica v. DeLongchamps, 1 Dallas 111 (Pa. 1784), 1 L. ed.
59, the striking of the prosecutor's cane in an insulting manner during an
altercation was held to be a criminal assault. McKean. C. J., saying, as to the
assault, "this is. perhaps, one of the kind in which the insult is more to be
considered than the actual damage; for, though no great bodily pain is suf-
fered by a blow on the palm of the hand, or the skirt of the coat, yet these
are clearly within the legal defmition of assault and battery, and among gen-
tlemen too often induce duelling, and terminate in murder;" United States
V. Ortega, 4 Wash. C. C. 531 (1825) ; State v. Davis, 1 Hill 46 (S. Car. 1832),
rope attaching negro to prosecutor's waist cut in taking negro from his posses-
sion ; Regina v. Day, 1 Cox. C. C. 207 (1845), prosecutor's coat cut in attack
upon him.

" Remainder of the opinion holding that the defendants were answerable
for the act of their floor-walker is omitted.



28 MARTIN V. HOUCK.

tially from the wrongs constituting malicious prosecution, malicious
arrest, assault, and assault-and-battery, though all of these wrongs
may sometimes be united in one comprehensive and aggregated
wrong. It also differs from libel and slander, and indeed from
every other wrong for which an action is given.



HOMER V. BATTYN. .

Court of King's Bench, 1738. Buller N. P. 62.

On a motion for an attachment against three persons for a
rescous of a person taken in execution, it was objected that there
had not been a legal arrest, as the bailiff had never touched the
defendant — per curiam, this is a good arrest ; and if the bailiff who
has a process against one, says to him when he is on horseback, or
in a coach, "you are my prisoner, I have a writ_ against you,"
upon which he submits, turns back or goes with him, though the
bailiff never touched him, yet it is an arrest, because he submitted
to the process :^ but if instead of going with the bailiff, he had gone
or fled from him, it could be no arrest unless the bailiff had laid hold
of him.^



MARTIN V. HOUCK.

Supreme Court of North Carolina, 1906. 141 N. Car. 317.

This action was brought to recover damages for an unlawful
arrest and false imprisonment. The defendant, Calvin Houck, was
a policeman of Granite Falls, when he was informed that the plain-
tiff had stolen a pair of shoes from a store while it was on fire. He
and his co-defendants, J. O. Deal and George Lefevers, who acted
as deputies, went to the plaintiff's house, which was two miles from
the town in the night and after the plaintiff and his wife had retired,
and arrested him, after searching the house at plaintiff's request, as
the State's evidence tended to show. The plaintiff's wife was com-
pelled to dress in the presence of these strangers. The plaintiff,
when accused of stealing the shoes, denied his guilt, but voluntarily
agreed to go with the defendants to town and answer the charge.
The defendants then told him that he need not go that night if he
would come to town the next morning, which he promised to do.



^ The submission may be shown by words, Jones v. Jones, 13 Iredell 448
(N. Car. 1852), or by acts— as by procuring bail when told to do so or to go
to jail, Browning v. Rittenhouse, 40 N. J. L. 230 (1878), or by paying taxes
which plaintiff refused to pay until arrested, Pike v. Hanson, 9 N. H. 491
(1838), or by giving up property, the defendant giving the plaintiff, who was
ill in bed, the choice of giving it up, finding bail or being taken on a capia^
or a sheriff's office) left in his room to guard him. Grainger v.,M 4 B N.
C 212 (1838) ; Bonesteelv. Bonesteel, 28 Wis. 245 (1871), 30 Wis. 511 (1872)

^Genner v. Sparks, 1 Salk. 79 (1704) ; Russen v. Lucas. 1 C. & P. 153
(1824).



MARTIN V. HOUCK.



29



He went to Granite Falls the next morninj^, but no warrant was
ever issued, and no accusation made against him for stealing the
shoes. The defendants had no warrant for the plaintiff when
they went to his home for the purpose of arresting him, nor
does it appear that any formal charge was ever made against him,
before or after the arrest. There was evidence on the part of
defendants to show that, while they had entered his house that
night, they had not arrested him.

The jury found, under issues properly submitted, that the
defendants did unlawfully arrest the plaintiff* and assessed his dam-
ages at $200. Judgment was entered upon the verdict and the de-
fendants appealed.

Walker, J. There was abundant evidence to show that the
plaintiff had been unduly restrained of his liberty by Houck and
the other defendants who were present and participated. In ordi-
nary practice, words are sufficient to constitute an imprisonment,
if they impose a restraint upon the person, and the party is accord-
ingly restrained ; for he is not obliged to incur the risk of personal
violence and insult by resisting until actual violence be used.^ This
principle is reasonable in itself, and is fully sustained by the au-
thorities. Nor does there seem that there should be any very
formal declaration of arrest. If the officer goes for the purpose of
executing his warrant, has the party in his presence and -power,
if the party so understands it, and in consequence thereof submits,
and the officer, in the execution of the warrant, takes the party be-
fore a magistrate or receives money or property in discharge of his
person, it is in law an arrest, although he did not touch any part
of the body.^ It is not necessary to constitute false imprisonment
that the person restrained of his liberty should be touched or
actually arrested. If he is ordered to do or not to do a thing, to
move or not to move against his own free will, if it is not left to his
option to go or stay where he pleases, and force is oft"ered or there
is reasonable ground to apprehend that coercive measures will be
used if he does not yield, ^ the offense is complete upon his sub-
mission. A false imprisonment may be committed by words alone,
or by acts alone, or by both, and by merely operating on the will of
the individual, or by personal violence, or both. It is not necessary



]^This is a quotation from 3 Starkie Ev. 1113.

"This is taken from the opinion of Wilcox, J., in Pxke v. Hanson, 9 N^
H. 491 (1838). where, after the plaintiff had refused«to pay certain taxes until
arrested, the defendant's tax collector told her he arrested her but did not
touch her, whereupon she paid the taxes; see also Grainger v. Hill, 4 B. X. C.
212. "Bare words," says Wilcox, J., "will not constitute an arrest (so far
quoting from Geniicr v. Sparks, 1704, Buller N. P. 62, 1 Salk. 79 (1704));
there rnust be an actual touching of the body; or what is tantamount, a power
of taking immediate possession of the body; -and the party's submission
thereto."

'This is part of the charge of Baldwin. J., in Johnson v. Tompkins, Bald.
C. C. 571, 590 (1838), the residue bearing on this point being as follows: "A
person so threatened need not wait for its actual application. The submis-
sion to the threatened and reasonably to be apprehended force, is no consent



30 MARTIN Z'. HOUCK.

that the individual be confined within a prison or within walls, of
that he be assaulted. It may be committed by threats. Voorhees on
Arrest, Sections 274, 275 and 276. The evidence shows that the
defendant Houck said to the plaintiff, "Consider yourself under
arrest. You must go back to Granite Falls with us." There was
still other evidence showing that he submitted to the control they
attempted to exercise over his person and that he was made to
act contrary to his own will. It is clear, we think, that there was
no error in the charge with respect to the question whether or not
there w^as an arrest.

We can find no error in the rulings and charge of the court.

No Error.*



to the arrest, detention, or restraint of the freedom of his motions — he is as
much imprisoned as if his person were touched or force actually used; the
imprisonment continues till he is left at his own will to go where he pleases
and must be considered as involuntary till all efforts at coercion cease and the
means of effecting it are removed."

In IV hit man V. Atchison etc. R. Co., 85 Kans. 150 (1911), it was held that
it w^as enough that the plaintiff was led by the defendant's false statements to
believe that it was the defendant's legal right to detain him till he had given
information as to the cause and extent of his injuries, there being no
evidence tending to indicate that force would be used to compel com-
pliance. In Payson v. Macomber, 3 Allen 69 (Mass. 1861), it was held that
it did not constitute false imprisonment to induce the plaintiff by false repre-
sentations, threats of prosecution and the payment of her expenses to go to
and remain in Salem, Chapman, J., saying, p. 73, that this "did not tend to
show that the defendants used force or threats of force, and without this the
plaintiff has no cause of action. It is at most a case where she yielded to the
defendant's misrepresentations and threats of prosecution against her and vol-
untarily absented herself from court and her home for a time."

* Accord: Goodell v. Tower et al, 77 Vt. 61 (1904), defendant, after
showing the plaintiff the warrant, permitted him to go on an errand before go-
ing with the defendant before a justice, but becoming impatient, the defend-