Francis H. (Francis Hermann) Bohlen.

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because felony must be done animo felonico; yet, in trespass, which
tends only to give damages according to hurt or loss, it is not so ;
and, therefore, no man shall be excused of a trespass (for this is the
nature of an excuse, and not of a justification, prout ei bene licuit),
except it may be judged utterly without his fault; as if a man by
force take my hand and strike you, or if here the defendant had
said that the plaintiff ran across his piece when it was discharging,
or had set forth the case with the circumstances so as it had ap-
peared to the court that it had been inevitable, and that the defend-
ant had committed no negligence to give occasion to the hurt.

Supreme Court of Wisconsin, 1891. 80 Wis. 253.

Appeal by defendant from a judgment of the Circuit Court for
Waukesha County in favor of plaintiff in an action brought to re-
cover damages for personal injuries alleged to have resulted from
a kick received from plaintiff. Reversed.

The plaintiff was about fourteen years of age and the defend-





ant about eleven years of age. They were sitting opposite to each
other across an aisle in school. The defendant reached across the
aisle with his foot and hit with his toe the skin of the plaintiff's
right leg. The touch was slight. The plaintiff did not feel it either
on account of its being so slight or of loss of sensation produced by
the shock. In a few moments he felt a violent pain in that place
which caused him to call out loudly. Owing to a previous injury
which left the leg in a very serious condition the slight touch caused
serious lameness,^ The jury found inter alia that the injury to the
plaintiff's leg was caused by the kick and that the defendant in
touching the plaintiff' did not intend to do him any harm.

The jury having found that the defendant, in touching the
plaintiff* with his foot, did not intend to do him any harm, counsel
for defendant maintain that the plaintiff has no cause of action,
and that defendant's motion for judgment on the special verdict
should have been granted. In support of this proposition counsel
quote from 2 Greenleaf on Evidence, § 83, the rule that "that the
intention to do harm is of the essence of an assault." Such is the
rule, no doubt, in actions or prosecutions for mere assaults. But
this is an action to recover damages for an alleged assault and
battery. In such case the rule is correctly stated, in many of the
authorities cited by counsel, that plaintiff' must show either that the
intention was unlawful, or that the defendant is in fault. If the
intended act is unlawful, the intention to commit it must necessarily
be unlawful. Hence, as applied in this case, if the kicking of the
plaintiff* by the defendant was an unlawful act, the intention of the
defendant to kick him was also unlawful. Had the parties been
upon the play-grounds of the school, engaged in the usual boyish
sports, the defendant being free from malice, wantonness, or negli-
gence, and intending no harm to plaintiff in what he did, we should
hesitate to hold the act of the defendant unlawful, or that he could
be held liable in this action. Some consideration is due to the im-
plied license of the play-grounds. But it appears that the injury was
inflicted in the school, after it had been called to order by the
teacher, and after the regular exercises of the school had com-
menced. Under these circumstances, no implied license to do the
act complained of existed, and«such act was a violation of the order
and decorum of the school, and necessarily unlawful. Hence we are
of the opinion that, under the evidence and verdict, the action may
be sustained.

Accord: See Weaver v. Ward, ante, p. 46: Welch v. Dtirand, 36 Conn.
182 (1869) \ Peterson v. Haffncr, 59 Ind. 130 (1877), the defendant, a boy of
fourteen, with intent to injure and in play, threw a piece of mortar at the
plaintiff's brother, who with the plaintiff was running away, the plaintiff looked
back and part of the mortar struck him in the eye; Henry v. Carlton, 129
Ala. 479 (1900), where the defendant's absence of personal ill will toward and
intent to injure the plaintiff was immaterial, he having thrust him out of the
way in the course of an unlawful pursuit of his servant.

So the defendant is liable if, in an unlawful attempt to strike or injure

^ The statement of facts is much condensed from those given by Orton,
J. in a previous trial of same case, 78 Wis. 84.


another, he strike or otherwise directly injure the plaintiff, the lack of specific
intent to injure the plaintiff can at most only be considered in assessisg the
damages, Jaiiu-s v. Campbell, 5 C. & P. 372 (1832), plaintiff struck during a
scuffle between the defendant and a third person; Corning v. Corning, 6 N.
Y. 97 (1851). the plaintiff' was riding in a buggy with a companion, the horse
starting, a blow aimed at her companion struck her; Carmichael v. Dolen,
25 Nebr. 335 (1889), the defendant, during a brawl, fired his pistol over his
shoulder at his antagonists and struck a bystander.

If, however, the defendant struck or shot in lawful self-defense and with-
out negligence strike a bystander he is not liable in trespass, Brown v. Ken-
dall, post, p. 57, and cases cited in the note thereto. Nor will the consent of
the person immediately touched by the defendant absolve him if it injure the
non-assenting plaintiff, Reynolds v. Pierson, 29 Ind. App. 273 (1902), nor will
provocation by the person intended to be struck mitigate the damages recov-
erable by a plaintiff struck by mistake. Corning v. Corning, 6 N. Y. 97. In-
jurious violence to another's person or an unpermitted interference there-
with, derogatory of such other's personal dignity because done in good nature
and with good motive, Johnson v. McConnel, note 2 to United States v. Or-
tega, 4 Wash. C. C. 531; or in fun, Peterson v. Haffner, 59 Ind. 130 (1877) ;
or in horse play, Markley v. JVhitnian, 95 IMich. 236 (1893), and Reynolds v.
Pierson, 29 Ind. App. 273. So taking of another's property as a "joke" is a
trespass, Wartman v. Swindell, 54 N. J. L. 589 (1892).

It is no defense to an unwarranted, rude and violent interference with
another's person that the defendant mistook him for another, Seigel v. Long,
169 Ala. 79 (1910), the defendant, a farmer, placed his hand on the head of
the plaintiff, who was driving an automobile, and pushed his hat back, when
discovering that he was not the driver who had previously frightened his
horses, he apologized.


55 ///. App. 605 (1894).

Pleasants, J. "Willfulness or intention on the part of the
defendant to do the injury to the person of the party injured, is held
to be essential to the establishment of liability of the defendant in
an action of trespass for an assault and battery, and malice or wan-
tonness besides, to an allowance for vindictive damages. There
may be trespass to the person and liability for the actual damage,
without intention to commit it,|but-not an assault and battery." .^

Accord: The Lord Derby, 17'Fed. 265 (1883) ; so in Mercer v. Corbiih-,
117 Ind. 450 (1888), it was said that "there must be something more than a
rnerp ne glipent t nnrhing^ nf n pHititifyg pprS ClI' tO constitute an assault and
battery." But it was further held that a specific intent to injure or interfere
"wTfh the plaintiff's person was not necessary if there was reckles sn ess or w il-
ful indiff er ence t o consequences sufficient to create an implied or constructive
intent; as to which see Commonwealth v. Lister, IS Phila. 405 (Pa. 1882),
pistol discharged in a spirit of frolic into the floor of a crowded Pullman car;
and State v. Stanton, 37 Conn. 421 (1870) ; shot fired at one man and strik-
ing another; and State v. Myers, 19 Iowa 517 (1865), sji ooting into a crowd
and injuring some one not i ntended is _criminal.

In England the plaintiff establishes a prima facie cause of action in tres-
-pass by sho wing harm immediately resulting tojijm f rom t he de fendant's yol-
. untary^-aeh The declaFation^eed Tiof allegenegligence or unlawful conduct
on the defendant's part, nor need the plaintiff prove it in the first instance. If
the harm resulted immediately from some outside force over which he had
no control, see Gibbons v. Pepper, 1 Ld. Raym. 38 (1695), he was not guilty of


trespass unless there was some prior negligence or misconduct of his without
which the harm would not have occurred and which thus was the occasion if
not the cause of the harm. It is highly doubtful whether such phrases as that
which occur in Weaver v. Ward, Hobart 134, and are repeated later in cases
and in early textbooks, see Buller's Nisi Prius, p. 16, to the effect "that no
man shall be excused of a trespass unless it be judged utterly without his
fault" or "as if here the defendant had set forth the case with the circum-
stances so as it had appeared to the court that it had been inevitable and that
the defendant had committed no negligence to give occasion to the hurt,"
were intended to lay down any broader principle of immunity than that ex-
hibited in these cases, see Holmes v. Mather, L. R. 10 Exch. 261 (1875), par-
ticularly the opinion of Cleasby B., and Wakeman v. Robinson, 1 Ring. 213
(1823). This could and must be shown under the general issue and a plea
confessing the trespass and excusing it by the allegation of such facts was
bad, Gibbons v. Pepper, 1 Ld. Raym. 38 (1695); Goodman v. Taylor, 5 C. & P.
410 (1832). Many cases decide that where the harm was due to the defend-
ant's voluntary act, inevitable accident, that is that the defendant neither in-
tended the harm nor was guilty of any negligence or fault, could not be shown
under the general issue, but if a defense at all, which is nowhere directly as-
serted, must be pleaded speciallv; Knapp v. Salsbury, 2 Camp. 500 (1832) ;
Hall V. Fearnley, 3 Q. B. 919 (1842).

And while many dicta more or less clearly asserted, Dallas, C. J., in Hall
V. Fearnley, 3 Q. B. 919; Bramwell, B., in Holmes v. Mather, L. R. 10 Exch.
261, or denied, Ellenborough, C. J., and Grose, J., in Leame v. Bray, 3 East
593 (1803), pp. 599-600, that the fact that the defendant was free from negli-
gence or fault was a defense to an action of trespass, the point was not final-
ly settled in England till 1891, when in Stanley v. Powell, L. R. 1891. 1 Q. B.
86, it was finally determined that "where an act is voluntary and the result
injurious an action of trespass can not be supported against a plea pleaded and
proved and which the jury find established, to the effect that there was no
negligence on the part of the defendant." In that case the plaintiff, who was
beating up game for a shooting party, was struck in the eye by shot fired by
the defendant at a pheasant, but which striking a tree, was so deflected that
it struck the plaintiff who was standing in another field, some distance from
the line of fire. The absence of negligence proved by the defendant, which in
the state of the case, had the same effect as though it had been specially
pleaded, was held a good defense, if the declaration was taken to be in tres-
pass ; see Chaddock v. Tabor, 115 Mich. 27 (1897).

As to the rule in Admiralty similar to that laid down in Stanley v. Powell,
L. R. 1891, 1 Q. B. 86, see The Virgo, 25 W. R. 397 (1877).

(b) False imprisonment.

Supreme Judicial Court of Massachusetts, 1908. 197 Mass. 80.

Tort, with three counts, the second of which was for false im-

The defendant was trustee in bankruptcy of the estate of one
Smith, and as such had taken possession of his shop and everything
therein. The plaintifif was the holder of a mort,e^age upon the g^oods
and chattels of Smith, upon which there was due $446.16 principal
and interest.

On March 2, IQ04, the plaintiff met the defendant by appoint-
ment. They came from the train together and went into the shop.

4 — Bohlen's Cases, Vol. I.



One Walter Smith, who was with the defendant, remained outside
by the door. After looking over and checking the property the
plaintiff tried to go out from the shop, but found the door fastened,
and was told by the defendant that the door was locked by his or-
ders. The defendant stated to the plaintiff that he had the door
locked because he "didn't know but that the plaintiff would have
a gang there." Sharp words passed between the plaintiff and the
defendant concerning the locking of the door. The defendant
rapped on the window in the door, which immediately was unlocked
by Walter Smith, and the plaintiff passed out of the shop. The de-
fendant then relocked the door. The plaintiff testified that he suf-
fered no injury nor damage whatsoever from this action of the de-
fendant. This was all the evidence as to imprisonment.'

Knowlton, C. J. The plaintiff's claim of damages for false
imprisonment is not sustained by the evidence. The testimony
shows that the locking of the door was not to imprison the plaintiff,
but for another purpose. As soon as the plaintiff" made known his
desire to go out the door was unlocked, and the plaintiff suffered no
injury nor damage.^

(c) Trespass to property.


King's Bench, 1647. Style 65.

Smith brought an action of trespass against Stone, pedibus am-
hulando. The defendant pleads this special plea in justification, viz.,
that he was carried upon the land of the plaintiff by force and vio-
lence of others, and was not there voluntarily, which is the same
trespass for which the plaintiff brings his action. The plaintiff de-
murs to this plea. In this case, Rolle, J., said, that it is the trespass
of the party that carried the defendant upon the land, and not the
trespass of the defendant : as he that drives my cattle into another
man's land is the trespasser against him, and not I, who am owner of
the cattle.^

^ Only so much of the facts and the opinion of the court is given as relates
to the count for false imprisonment. , r , .

Mn Woodward v. IVashburn, 3 Denio 369 (N. Y. 1846), the defendant,
who had locked the door at the usual closing hour while the plamtnr was
therein and refused to open it to let him out, was held guilty of false im-
prisonment, cf. Talcott V. National Exhibition Co.. 144 App. Div. (N. Y.) 33/
(1911)— but see Spoor v. Spooner, 12 Mete. 281 (Mass. 1847), where a con-
stable, with knowledge of the usual starting time of a steamer came on board
to make an arrest just as it was about to start, it was held that it was not
false imprisonment to start the boat before the constable had gone ashore.

^See Millen v. Fandrye, Popham 161 (1605), where it was held that the
defendant who has set his dog on the plaintiff's trespassing sheep to drive
them from his close was not liable in trespass for the dog's following the sheep
on to the plaintiff's adjoining premises, he having done all he could to call



John Henry Wigmore, "Responsibility for Tortious Acts: Its His-
tory." "Select Essays in Anglo-American Legal History."
— yolume HI, Pages 475 to 482.

In endeavoring to realize the nature of the primitive canons of Responsi-
bility, one must take into consideration the essentially superstitious and
unreasoning spirit which pervaded the jural doings of primitive society; for
the notion here dealt with was only one of the vehicles of his expression.
One need not here to call to mind in detail the characteristics of primitive cul-
ture; only certain of the more germane may be noted. The instinct of re-
venge, as an aggressive reaction from inflicted pain, preceding any developed
sense of justice; the prevalence of clan-organization and clan-responsibility;
the idea of transgression as associated with ceremonial observances ; the im-
plicit belief in taboo and curse; the propitiation of ghosts and deities by gifts
and sacrifices; the sense of pollution and contamination (as by the touching
of blood or of a corpse) ; the inheritance of guilt; the appeal to a decision of
the Deity or of chance in litigation (as by the subjection to ordeals, the swear-
ing of exculpatory oaths, the engaging in formal combat) ; the arbitrary
formalism of words and phrases in pleading and oaths, — these give the tone
to the times. In the light of these it is easy to understand that the notion of
Responsibility for Harmful Results was determined largely by crude primi-
tive instincts of superstition, — that our ancestors were satisfied with finding
a visible source for the harm and following out their ideas of justice upon it.

It must be remembered, moreover, that we are here dealing with a senti-
ment characteristic of primitive justice everywhere. It was, beyond question,
universal. It appears not only in the strictly Germanic peoples, but in the
records of all the race-stocks, however mixed, of post-Christian Europe, — the
Scandinavian, the Flemish-Dutch, the Celtic, the French, the Spanish, the
Italian, the Slavic, the Hungarian. It is found in earliest Greece and earliest
Rome It is equally marked in the Semitic races — Jews and Mohammedans

back his dog; with which compare Beckw-ith v. Shordike, 4 Burrow 2092
(1767), where the defendant and his dog were trespassing on the plaintiff's
land and the dog chased the plaintiff's deer.

In Gilbert v. Stone, Aleyn 35 (1641), a plea that twelve unknown
armed men had so threatened him that they put him in fear of his life and
compelled him to go to the plaintiff's house was held bad on demurrer, "for
one can not justify a trespass through fear and the defendant hath remedy
against those that compelled him." But see_Cl L'""".<7/'fl'» v- Pitzer 2 W. Va.
264 (1867), where it was held that the defendant was not guilty oT'trespas'^
in threshing and carrying off the plaintiff's corn by command of a body of
Confederate troops, if, but only if, "he h ad no other reasonable means of sav-
ing himself from death or great bodilv harm or Toss of person al libert y," anT
see Ploof V. Putnam, 81 VtT'^Tf fl^O*?) , whe r e a man out oi rT^ake Lhamplain
in a violent storm, who mooring his boat to the plaintiff's wharf, without the
latter's permission, was held not to becorne a trespasser thereby, though, it
is held in Vincent v. Lake Erie Transf^ortation Co.. IW Minn. 456 (1910), that
he must pay for the damage, if any, done to the wharf.


— as well as their predecessors in Chaldea and Egypt; and in the totally un-
related Hindus and Chinese, as well as the Japanese. And in the primitive
tribes still surviving everywhere — in Africa, Australia, America and Asia — it
is still observable. In the two following passages, its general bearing is broad-
ly stated :

1884, A. H. Post, Die Grundlage des Rechts und die Grundzuege seiner
Entwickelungsgeschichte, §§ 39, 40, pp. 350, 354:

"All wrongs are originally violations of rights between one clan and an-
other. Every wrong done by an individual creates an obligation for his clan
towards that of the injured person. There is thus no doctrine, in civil wrongs,
about intent, negligence, guilt, capacity, voluntariness, mistake, fear, or the
like. The whole point of view of individual mental states which dominates
our modern tort-law (a law essentially of individual rights and duties) is
alien to primitive law. Each clan is liable to the other for every injury suf-
fered, whether it be done by adult clan-members or by women, children, ani-
mals, or lifeless objects belonging to the clan, and whether the wrongdoer be
blamable or be merely the involuntary tool of external forces. It is only with
the dissolution of the clan-organization that the individual aspect of wrongs
comes into consideration ; and at the same time the wrongdoer's mental state
(wholly ignored in clan-law) comes for the first time into the foreground.
* * * With the disappearance of the clan-organization and the development
of the state, by which the inter-tribal union grows into a community held to-
gether by a higher social power, and in which the individual is accorded a more
or less personal sphere of rights, there arises gradually the notion of personal
culpability as a presupposition of personal responsibility for wrongs. One of
its first expressions is in the idea that harm caused by accident is not to be so
stringently treated as an intentional harm. Though the intentional harm
would justify a blood-feud, the accidental one can be compounded by expia-
tion-money wherever the injured party's duty to accept expiation-money comes
to be recognized, this is found first applied to accidental harms.

"A further mark of this gradual transition to personal culpability appears
in the diminution of the fine for negligent harms as compared with that for
intentional ones; and also in the application of the negligence-fme to harms
done by the women, children, slaves, animals, and lifeless objects belonging to
the clan, or by a blood-relation not himself responsible. * * * To this dis-
tinction between intentional and unintentional harms the distinction appears
to be originally due between criminal and civil law. The intentional wrong be-
comes the crime, by which the doer is made corporally responsible. The un-
intentional wrong creates only an obligation to give redress; only the prop-
erty of the wrongdoer is thereby made liable. It is only gradually that cer-
tain negligent misdeeds are made punishable as crimes, and that certain inten-
tional wrongs are treated merely as calling for redress. * * *

"Moreover, a special grouping of negligent wrongs is quite alien to the
early legal system. Only intentional and unintentional acts are distinguished.
The unintentional includes the negligent as well as the unavoidable, but with-
out discriminating them. * * * With the rise of the conception of culpa-
bility as the presupposition of a wrong, there develops a deep and remarkable
change in legal ideas. In the primitive the social order is regarded merely
from a mechanical point of view and the responsibility for harm is placed on
him who caused it, regardless of whether he willed it or was only the medium


of a higher force; but now the mental side of the social union comes strongly
to the front. There is thus prepared the basis for a psychological theory of
compromise or settlement. The principle that without moral culpability no
liability arises either to make compensation or to suffer punishment develops
necessarily a body of doctrine about guilt, capacity, intent, negligence, and thus
to distinctions between voluntary and involuntary acts. The mechanical aspect
of the social order, originally the marked one, now begins more and more to
be ignored, and the mental aspect, on the other hand, comes to be exclusively

1888, P. F. GiRARD, Les actions noxales, in Nouvelle revue historique du
droit f rangais et etranger, XII. 38 :

"There is a phenomenon which one can discern throughout all antiquity, —
that is, vengeance, the physical, unreasoning emotion, which drives the victim
of an injury to a violent reaction against the immediate author of the injury.
He who regards himself as offended against, takes vengeance for the offence
as he will and as he can, alone or with the help of others, recognizing only the
brute fact that he has suffered, and dominated by a feeling of resentment
measured solely by the harm he has undergone. * * * The victim of the
harm knows nothing but the harm done to him. He does not concern himself
with the intent of the doer. * * * j^g therefore revenges himself for the
harm-causing act, even though it may have been unintentional. * * * More-
over, for the same reason, the victim takes his revenge even where the imme-
diate author of the harm is not capable of intending it, — where it is not a
human being, but an animal, or an inanimate object."

In this particular field, too, there are numerous manifestations, all akin.
The doer of a deed was responsible whether he acted innocently or inadvert-
ently, because he was the doer; the owner of an instrument which caused harm
was responsible, because he was the owner, though the instrument had been
wielded by a thief ; the owner of an animal, the master of a slave, was respon-
sible because he was associated with it as owner, as master; the master was
liable to his servant's relatives for the death, even accidental, of the servant,
where his business had been the occasion of the evil ; the rachimburgius, or
popular judge, was responsible for a wrong judgment, without regard to his

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