Pizitz v. Bloomburgh

McCLELLAN, J. [1, 2] Action for damages for an assault and battery, instituted by appellee against appellant. A verdict for defendant, appellant, was returned by the jury. The motion for new trial was granted on the ground that the court erred in giving, at the request of defendant, this instruction: “(7) To make out a case of assault and battery it must appear that the wrong or injury was intentionally done.” In this jurisdiction it has been soundly declared and established that to maintain a civil action for damages for an assault and battery it is not essential that the infliction of injury upon the party assailed should be intended. Carlton v. Henry, 129 Ala. 479, 482, 29 South. 924; Seigel v. Long, 169 Ala. 79, 82, 53 South. 753, 33 L. R. A. (N. S.) 1070; B. R., L. & P. Co. v. Coleman, 181 Ala. 478, 482, 61 South. 890. Furthermore, this doctrine receives general acceptance in other jurisdictions. The instruction quoted exacted, in the alternative at least, an intention to injure as a condition to the maintenance of a civil action for damages for an assault and battery. In giving it the court committed an error highly prejudicial to the plaintiff:, an error that could not be pronounced harmless under the principle or direction of rule 45 (175 Ala. xxi, 61 South. ix). The motion for new trial was properly granted. AfBrmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.