Andersen v. Schlesinger

McAdam, J. The complaint alleges that on July 20, 1893, the defendant and two of his agents entered the apartments of the . plaintiff, and that one of said agents violently assaulted the plaintiff, striking her on the shoulder and pushing her backwards, [536] whereby she was injured to her damage $1,000. The presence of the defendant, in the apartment does not make him- liable, because the facts alleged do not necessarily lead to the implication that he concurred in what was done, or even witnessed it. The plaintiff should, therefore, have gone a step ■ further, and .alleged that the defendant instigated, aided, abetted or sanctioned the assault; fur every fact which a plaintiff must prove to maintain his suit .must be distinctly averred. Garvey v. Fowler, 4 Sandf. 667; Cole v. Blunt, 2 Bosw. 126; Rodi v. Ins. Co., 6 id. 24; Stannard v. Eytinge, 5 Robt. 92. To make one person liable for the acts of another, the pleader shpuld show either a relation between them which in law creates the responsibility, or that the person sought to be held became chargeable by reason of participation or some act tantamount to it. In order to hold the defendant on any other theory it was necessary for the plaintiff to allege and, if denied, prove .that the acts were done while engaged in the master’s business. Wood’s M. & S. 5,46. ■ Or she might have alleged an assault by the three persons who entered her apartment, for that would have been the legal effect of the wrong if they were acting in concert. “ By the common law, all are principals in an assault and battery, as in other trespasses; and he who' counseled, aided or assisted in any way the commission of a wrong was, in the eye of the law, as much a principal as he who inflicted the'blows, and the'declaration against'him who counseled or aided was consequently the same as against him who actually committed the violence.” Bliss on Pl. (2d ed.), § 82. ‘And see Penal Code, §§ 29, 31. " . The plaintiff did not adopt any of these courses. She merely alleges that the wrong was committed by another, omitting'reference to any fact which would make the defendant responsible for the conduct of such other person. Such a complaint is fatally de^fective when challenged on demurrer. Under the circumstances, the law will not impute to the defendant an assault and battery upon the plaintiff, which would subject him to. criminal prosecution as well as civil liability.. Penal Code, §§ 219, 29, 31. The. objection to the complaint, that it does not state facts sufficient to constitute a cause of action, made in the-nature of a demurrer at the trial (Code, § 499), must, therefore, be sustained, with costs. . Motion granted.