Art. 2. Remedies.

lie for battery of wife or servant, whereby death ensued. Styles, 347; 1 Lev. 249; Yelv. 89-90. This was so because of the common-law rule that an action for assault died with the party, and the wife or husband, parent or child of the party killed could not recover any pecuniary compensation. Baker v. Bolton, 1 Campb. 493. Such was the law until the enactment of the statute 9 & 10 Vict., chap. 93, providing that whenever death of a person shall be caused by the wrongful act, neglect, or default, as would, if death had not ensued, have entitled the party injured to be sued by the executor or administrator for the benefit of the husband or wife, parent or child of the person deceased. This act, known as Lord Campbell's Act, is the forerunner of the present section 1902 of the Code of Civil Procedure, which provides, "The executor or administrator of a decedent, who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death."

The above section of the Code has been held to authorize an action by the next of kin for assault and battery in a case which resulted in the death of the party injured. Kain v. Larkin, 56 Hun, 80, 9 N. Y. Supp. 89.

It should be noted that the liability for an assault causing death rests solely upon the above statute and that assault and battery is expressly excluded from the injuries to the person which survive by virtue of the Revised Statutes following:

2 Rev. Stat., § 1, provides that wrongs done to property, rights, or interests of another, for which an action might be maintained against the wrongdoer, such action might be brought by the person injured, or after his death by his executor or administrator against such wrongdoer; or after his death against his executors or administrators in the same manner and with like effect in all respects as actions founded upon contracts. But section 2 provides that the preceding section shall not extend to actions for slander, for libel, or actions for assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.

While an intent to do some wrong is necessary to a criminal conviction for assault and battery (People v. Bransby, 32 N. Y. 525), the element of intent seems to be of much less importance in the civil action.

In a civil action for assault and battery, there need not be express intention to do the injury if the assault is committed in pursuance of an unlawful act or was the result of negligence. This is well illustrated by the famous "Squib Case" (Scott v. Shepard, 2 W. Bl. 892), in which the defendant was held liable for assault in the absence of a criminal intent. In that case a lighted squib was thrown by the defendant into a market-house while a fair was being held. The squib fell upon the stand of one who, to prevent injury to himself, threw it across the house, where it fell upon the stand of another, who in the same way threw it again, striking the plaintiff and putting his eye out. The court said: "The throwing of the squib by the defendant was an unlawful act at common law, as the squib had a natural power and tendency to do mischief indiscriminately. No man contracts guilt in defending himself; the second and third men were not guilty of any trespass, but all the injury was done by the first act of the defendant. * * * For I conceive all the facts of throwing the squib must be considered as one single act, namely, the act of the defendant, the same as if it had been a cracker made of gunpowder which had bounded and rebounded again and again before it had struck out the plaintiff's eye."

* * *

It is not necessary that one intend the particular injury which follows an illegal or mischievous act in order that he may be liable

Art. 3. Elements of the Wrong.

for the consequences. Thus, where the defendant having a quarrel with a boy in the street of a city, took up a pickaxe and followed him into the plaintiff's store, where he fled in endeavoring to keep out of defendant's road, and the boy ran against and knocked out the faucet of a cask of wine, by means of which a quantity of the wine ran out and was wasted, the defendant was held liable for the damages. Vandenburg v. Truax, 4 Den. 464, citing Scott v. Shepard, 2 W. Bl. 892; Guille v. Swan, 19 Johns. 381.

(Note that though this action was for trespass and for an injury to property, yet the decision is largely founded upon Scott v. Shepard, which was an action for assault.)

Thus, a person while intending to kill an enemy attacks his friend in the dark by mistake and wounds him; he is, nevertheless, guilty of assault with intent to murder. McGee v. State, 62 Miss. 772, 52 Am. Rep. 209.

It is not necessary that the defendant intend to do the particular assault complained of. Thus, where the defendant intended to strike at one person, but hit another, he is liable to such person injured for assault and battery. Corning v. Corning, 6 N. Y. 103.

There is a presumption of innocence on the part of a defendant in a civil action in case where a judgment against him would show him to have been guilty of a crime, and the defendant is entitled to such a charge. Grant v. Riley, 15 App. Div. 190, 44 N. Y. Supp. 238.

Although a private person may arrest a felon, yet where one arrested a female on the charge of giving counterfeit money, and thereupon took her into his house and detained her for threequarters of an hour, demanding payment as a condition of release, it was held to be an assault and battery and false imprisonment. People v. McArdle, 1 Wheel. Cr. Cas. 101.

It was held in an action for assault and battery brought in a justice court, which was without jurisdiction, that where the defendant made an assault upon the horse of the plaintiff while the plaintiff was in the wagon attached thereto, as a result of which he was injured as well as the horse, that the plaintiff could have sustained an action in the Supreme Court for assault upon his person, and also recover damages for the injury to the horse. Bull v. Coulton, 22 Barb. 95, citing De Marenville v. Oliver, 1 Penn. (N. J.) 380; 1 Dallas, 114; Barb. Cr. Tr. 212; People v. Lee, 1 Wheel. Cr. Cas. 364, 4 Den. 453. Whart. Am. Cr. Law, 462.

Art. 3. Elements of the Wrong.

Where a passenger did not procure a ticket at the office owing to the absence of the ticket agent, and, therefore, refused to pay the additional fare of five cents, it was held that, owing to the absence of the ticket agent, the defendant was not entitled to demand the extra five cents, and that if the conductor, after being informed of the facts, ejected the plaintiff, the latter could maintain an action for assault and battery. His remedy is not limited to an action for unlawful ejection. Moreover, the passenger is entitled to resist such ejectment to the best of his ability. Monnier v. N. Y. C. & H. R. R. R. Co., 70 App. Div. 405, 75 N. Y. Supp. 521, reversed 175 N. Y. 281.

It is assault and battery to strike a horse on which another is riding, thereby causing him to be thrown down. Dodell v. Burford, 1 Mod. 24.

In a criminal case it was held that to vaccinate a person against his will and without legal authority is assault. Matter of Walters, 84 Hun, 457, 65 St. Rep. 479, 32 N. Y. Supp. 322.

From the cases it would seem that there need be no intent, either particular or not, to render the defendant liable when a battery is actually committed; yet in cases where there is no battery the presence of an intent to commit a battery, or acts which would lead the plaintiff to a reasonable fear of battery is alone sufficient to a liability. Thus: In a criminal case it was held to be a battery to attempt to run against a wagon of another person on a highway, even though there was no actual collision. People v. Lee, 1 Wheel. Cr. Cas. 364.

The menace of violence with a dangerous weapon by a person within striking distance of the party menaced is assault, although the party menaced is not actually struck, and damages may be recovered for such assault. Liebstadter v. Federgreen, 80 Hun, 245, 61 St. Rep. 621, 29 N. Y. Supp. 1039.

It is assault to pursue a man with a dangerous weapon and come so near him that he may reasonably apprehend danger. Fairme's Case, 5 City H. Rec. 95.

The intent must be concurrent with the act and must not be negatived by other acts. Thus, where one laid his hand upon his sword, and said that if it was not assize time I would not take such language. Held not to be an assault. Tuberville v. Savage, 1 Mod. 3.

The same principle was applied in Com. v. Eyre, 1 Serg. & R. (Pa.) 347, where the defendant, within striking distance, raised

Art. 3. Elements of the Wrong.

his hand, saying: "If it was not for your gray hairs I would tear your heart out." Held, that it was not an assault because of the words negativing the intention to strike.

In an action for assault under such circumstances as would constitute the crime of rape it was held that in order to maintain the action it would be necessary to satisfy the jury that if the defendant had criminal connection with the plaintiff, it was accompanied with intent on his part to effect his purpose in defiance of all resistance, and without her consent, and that this was a question for the jury. Dean v. Raplee, 145 N. Y. 319, 64 St. Rep. 677, affirming 75 Hun. 389, 57 St. Rep. 690, 27 N. Y. Supp.

438.

In a civil action for assault and battery, while the assault must be unwarranted, it need not, in order to render defendant liable, have been committed in anger. Johnson v. McConnell, 15 Hun, 295, citing Hilliard on Torts, 189, 193, note; Bullock v. Babcock, 3 Wend. 391; Hilliard on Torts, 189, 193.

Compare the facts in Isaacs v. Flahive, 14 Misc. Rep. 249, 35 N. Y. Supp. 716, 70 St. Rep. 450.

SUBDIVISION 2.

Overt Act.

But of course mere intent is no assault, it must be evinced by some overt act.

An overt act and not a mere intention is necessary to a battery. See People v. Powers, 1 Wheel. Cr. Cas. 405. Though in order to constitute assault there need not be even a direct attempt at violence, but indirect preparation toward it is sufficient. Hays v. People, 1 Hill, 353.

In a criminal case it was held that to seize the reins of a team which a person was driving, stopping them, and directing another person to turn the team in another direction, which was done, is an assault upon the person driving. People v. Moore, 50 Hun, 356, 20 St. Rep. 1, 3 N. Y. Supp. 159.

SUBDIVISION 3.

Ability.

And this overt act must be accompanied with an ability, real or apparent, to perform it.