Art. 4. Defenses.

W. R. R. Co., 28 Misc. Rep. 499, 59 N. Y. Supp. 857, affirming 27 Misc. Rep. 811, 57 St. Rep. 396.

In Foley v. Metropolitan Street Car Co., 80 App. Div. 257, 80 N. Y. Supp. 249, the defendant was held liable for an assault by the conductor, distinguishing Nolan v. Metropolitan Street R. R. Co., 65 App. Div. 184, 72 N. Y. Supp. 501.

But a street railroad company is not liable for an assault on a passenger by a conductor, which was provoked by the act of the passenger. James v. Metropolitan Street Ry. Co., 80 App. Div. 364, 80 N. Y. Supp. 710.

A passenger on a railroad train must subordinate his conduct to all rules of the company that are reasonable and valid. It is the duty of the conductor to execute and enforce them; if there is some fact or omission behind the rules not apparent upon the face of the transaction, the passenger must resort to some other remedy for his grievance beside the use of force against the conductor, and if, under such circumstances, he invites a personal collision with him, he puts himself in the wrong, and cannot sue the company or the conductor for damages for assault and battery.

The fact that a railroad passenger, by reason of the absence of the ticket agent, is unable to procure a ticket before entering the train, is no justification for his forcible resistance to an ejection therefrom when, having refused to pay the additional fare required of passengers without tickets by a rule of the company, made under express statutory authority, the conductor, without undue force, ejects him; and neither the company nor the conductor is liable for damages in an action for an assault and battery brought by the passenger; under such circumstances, it is his duty to pay the additional fare or submit to an ejection, and then resort to his remedy for the negligence or mistake of the ticket agent. Monnier v. N. Y. C. & H. R. R. R. Co., 175 N. Y. 281.

5. Officers of justice. An officer of justice who is assaulted by one upon the premises when he enters peaceably to make an arrest for a violation of the Excise Law, completely justifies his act in arresting the plaintiff, when he had reason to believe that a violation of such law was being committed, and where he was assaulted by the plaintiff without just cause. Park v. Gilligan, 14 Misc. Rep. 121, 35 N. Y. Supp. 477.

A person serving a subpoena has legal license to enter a house of another peaceably for that purpose, and when there it is not as

Art. 5. Parties.

sault and battery for him to overcome any resistance he may meet with in the service of the subpoena. He is only liable for acts of violence that were not necessary to overcome the resistance. Hager v. Danforth, 20 Barb. 16.

Even though the person is incapable of levying any process, the owner of the property is not authorized to use unreasonable or unnecessary violence in resisting the execution of such process. People v. Gulick, Hill & Den. Supp. 229.

One cannot justify an assault and battery upon an officer taking goods under attachment, if the process of the officer is regular on its face, even though issued by one not having jurisdiction of the subject-matter. People v. Cooper, 13 Wend. 379.

It is held in People v. Hubbard, 24 Wend. 368, that a sheriff may lawfully be resisted in attempting to carry away property from the house, the outer door of which, being shut, he opened for the purpose of making a levy under execution. The court denies that the sheriff in such a case is protected as to the levy.

A policeman who goes upon private property without a warrant or process has no authority to determine the right of possession of personal property between adverse claimants, and if he uses force in taking possession thereof he is liable to damages. Isaacs v. Flahive, 35 N. Y. Supp. 716, 70 St. Rep. 450, 14 Misc. Rep. 249.

A police officer is liable in damages in a civil action for assault and battery which he commits while conveying a person whom he has arrested to the station-house. See Ennis v. Dudley, 22 Misc. Rep. 5, 48 N. Y. Supp. 622, 82 St. Rep. 622.

The action is usually brought by the party upon whose person the assault is committed, and it may be stated generally that it lies in the favor of such person in all cases, whether he be adult

Art. 5. Parties.

or minor, sane or insane; or, if the battery causes death, then by his personal representative.

But a wife cannot maintain a civil action for assault and battery against her husband, for in law they are one person. Nor, it seems, did the Domestic Relations Law (Laws 1896, chap. 272, § 27), which gave to the wife a right of action for injury to her person, change the law in this respect. Nor is such action maintainable as "for an injury arising out of the marital relation." Abbe v. Abbe, 22 App. Div. 484, 48 N. Y. Supp. 25, 82 St. Rep. 25, citing Schultz v. Schultz, 89 N. Y. 644, which reversed 27 Hun, 26.

While a wife cannot bring a civil action for assault and battery against her husband, yet a woman who by fraud was induced to marry defendant, when by law he was incompetent to marry, may be allowed to recover damages in an action which combined an action for fraud and one for assault, although she did not procure a formal annulment of the marriage contract, the marriage itself being void ab initio. Blossom v. Barrett, 37 N. Y. 434.

A parent may bring an action for assault and battery upon his child, and the foundation of such action is the loss of services and the expense and trouble of the parent; therefore, punitive damages cannot be awarded in this action. But at the same time another action lies on behalf of the child injured, in which action punitive damages may be recovered. Conden v. Wright, 24 Wend. 428.

And the same rule holds where the action brought by the parent is for indecent assault; then only damage for loss of services can be obtained. There is a distinction between an action by a parent for indecent assault and an action for seduction, and while in the latter case punitive damages may be obtained, they cannot be recovered in the former except upon suit by the person assaulted. Whitney v. Hitchcock, 4 Den. 463.

A parent may have an action for assault upon his son, but in such action he cannot recover for injury to his feelings. There are two remedies; one on behalf of the parent, and the other on behalf of the child, and the two remedies are sufficiently liberal and more onerous to the defendant than where he is confined to a single action for the assault. Cowden v. Wright, 24 Wend. 428.

Art. 5. Parties.

SUBDIVISION 2.

Defendants.

SECTION 1. Joint tort feasors

PAGE.

444

444

445

1. Joint tort feasors.- Persons natural or corporate are liable for their assaults; but joint tort feasors may be joined as defendants in actions for assault and battery, and, where several defendants have participated in the wrong, each is liable for the damages charged against the most culpable. Hoffman v. Schwartz, 11 Civ. Proc. 200.

One who is present and instigates and encourages those who are actually using physical violence is liable for assault and battery. Newman v. Marshall, 20 J. & S. 302.

The party who directs or excites the commission of a crime of trespass, such as assault and battery or false imprisonment, is guilty as principal, and when sued in a civil action cannot be permitted to show that the trespass would have been committed without his interference. Coats v. Darby, 2 N. Y. 517, overruling Herrick v. Manly, 1 Cai. 252.

In a criminal case it was held that where one driving with immoderate speed knocked down a woman on the street, that a person riding with him and who assented to such immoderate speed was liable for assault and battery. Jacques Case, 5 City H. Rec. 77.

§ 2. Infants and lunatics. Infants equally with adults are liable for trespass, slander, assault, etc. But it seems that where the assault is made by an infant that might probably be considered unavoidable accident which would not be so if the assault were committed by an adult. Bullock v. Babcock, 3 Wend. 393, citing Bingham on Infancy, 110; 8 T. R. 335; 16 Mass. 389; 2 Inst. 328. See 4 Den. 175.

So, too, a lunatic is civilly liable in damages for assault and battery. See Bullock v. Babcock, 3 Wend. 393; Weaver v. Wood, Hobart, 134.

But a lunatic is liable civilly in assault and battery only for the actual injury resulting; and he is not criminally liable as he is

Art. 5. Parties.

not a free agent capable of voluntary action, and is, therefore, incapable of malicious intent, which is the essence of a crime. Krom v. Schoonmaker, 3 Barb. 647.

At common law a hus

83. Assaults by agents and servants.band was liable to be sued jointly with his wife for her torts, whether committed prior to or during coverture. For the general principle see Rowe v. Smith, 45 N. Y. 230; Kowing v. Manly, 49 N. Y. 192. But this rule was changed by chapter 51 of the Laws of 1890, now section 27 of the Domestic Relations Law, which provides, in speaking of the wife, “ that she is liable for her wrongful and tortious acts; her husband is not liable for such acts unless they were done by his actual coercion or instigation; and such coercion or instigation shall not be presumed, but must be proved."

A master is liable for an assault committed by his servant under the master's direction, and if the assault is aggravated the court will not interfere with a verdict awarding punitive damages. Smith v. Flannery, 53 St. Rep. 159, 23 N. Y. Supp. 201.

Private persons are liable for assaults by their servants, as where one committed assault and battery under the direction of another, such person who directs or advises the assault is liable. Hoffman v. Schwartz, 11 Civ. Proc. 200.

A master is liable for an assault of his servant where he has

directed him to take certain property, even though the servant act with lack of discretion and judgment. Griffith v. Friendly, 30 Misc. Rep. 393, 96 St. Rep. 391, 62 N. Y. Supp. 391.

If the agent, being authorized by his principal to retake real property, and although in order to accomplish that purpose he makes a willful assault, the principal is, nevertheless, liable as the agent is acting within the scope of his employment. O'Connell v. Samuel, 81 Hun, 361, 30 N. Y. Supp. 889, 62 St. Rep. 143.

Where a dealer told his agent that he must not touch or take goods for nonpayment of an installment due, the dealer was held not to be liable for an assault by the collector upon the vendee in attempting to retake the goods. Feneran v. Singer Mfg. Co., 20 App. Div. 574, 47 N. Y. Supp. 284.

The owner of a store has been held liable as for assault and battery where a purchaser having put on an ulster had it taken from her by a saleswoman by order of the defendant's floorwalker, upon the ground that the plaintiff was a spy from a rival establishment. Geraty v. Stern, 30 Hun, 426.