Summary of Western Union v. Hill, Ct. App. AL, 1933
Facts: Plaintiff was required to have Defendant subcontract for the repair of a clock at their respective places of employment. Plaintiff approached Defendant, who admitted drinking whiskey, to secure a definite time of repair. Defendant became crass with Plaintiff stating “let me love and pet you, I will fix your clock." It is alleged, but controverted, that Defendant attempted to touch but was stopped by the counter’s dimensions.
Issue: Does apparent ability to carry out offensive touching, when he can reach only inches beyond the counter to where Plaintiff stood, constitutes assault?
Holding: Yes, as the jury found.
Procedure: On appeal from trial court’s judgment against defendant. Reversed on separate issues.
Rule: To constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner, under circumstances, creating in the mind of the assaulted, a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.
Ct. Rationale: The question on appeal is a determination of fact. That is reserved for the trial court and the jury. The Appellate court found no error that was within their jurisdiction. Defendant had the apparent ability, committed an offensive offer to touch another, in a rude manner, creating a belief that imminent battery would follow.
The action was reversed on the issue of whether Sapp acted within the scope of his employment.
P. A. : The defendant created the atmosphere of assault and battery with offensive offer to touch in a rude manner.
D. A. : The elements of the law are unactionable as to impossibility. The counter as described barred the prescribed “imminent battery," and “apparent ability."