Borchert v. Bash

150 N.W. 830, 97 Neb. 593, 1915 Neb. LEXIS 26

• Court: Nebraska Supreme Court
• Decided: January 6, 1915
• Docket: No. 17,879
• Status: Published

Opinions

Letton, J.

This is a civil action for assault and battery. It is charged that the defendant assaulted the plaintiff and attempted to have carnal intercourse with her against her will and without her consent by forcibly overcoming her resistance, but that the plaintiff by exercising her strength succeeded in releasing herself. The assault is alleged to have occurred on the 6th day of March, 1911. The action was begun on the 23d of September, 1912. The defendant filed a general demurrer, on the ground that the plaintiff’s cause of action was barred by the statute of limitations. The demurrer was sustained, and, the plaintiff having elected to stand upon her petition, a judgment of dismissal was entered. Plaintiff appeals.

The question to determine is whether the action is one for assault and battery, which by section 13 of the code, must be brought within one year, or whether it is “an action for an injury to the rights of plaintiff, not arising on contract, and not hereinafter enumerated,” which, under section 12, is not barred until four years after the wrong. The appellant’s position is that the petition charges a felonious assault, and that felonious assaults are not within the definition of assault and battery, and, hence, must be covered by the provision of section 12. It is a settled doctrine of statutory construction that words shall be taken to have their ordinary and customary meaning. The question, then, is, for what classes of wrongs has it been generally understood, both in England and in this country, can damages be recovered in civil actions for assault and battery?

At the common law the action for every wrong of this nature was trespass, vi et armis, for assault and battery. Dickey v. McDonnell, 41 Ill. 62; Agnew v. Jobson, 13 Cox C. C. (Eng.) 625.

In Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668, it is said: “This action is nothing more than trespass for an assault and battery. There is no such thing as a private action for a crime as such. The civil grievance here charged was an assault, described, as was proper, with its attendant circumstances of enormity, including an attempt to ravish. This, however, does not make it differ from an action for a lighter grievance, except as showing a heavier ground of complaint, for which, if made out, the damages allowed would be likely to be larger.”

It is unnecessary, in order to make out a cause of action, to plead matters of aggravation, since their effect is merely to increase the damages (3 Oyc. 1082ft); and the contention that, because the assault is alleged to have been accompanied by aggravated circumstances, the nature of the action is changed from a civil action of assault and battery, we think, is untenable. It is the same action, but the damages may be enhanced by the nature of the assault.

The books are full of reports of civil actions for indecent assaults of this nature, extending over a period of many years. They are uniformly classed at common law as actions in trespass, vi et armis, for assault and battery, and in code states as actions for assault and battery. The following illustrative cases are concerned with like assaults. Each is denominated an action for assault and battery. Luttermann v. Romey, 143 Ia. 233; Haulish v. Boller, 75 N. Y. Supp. 992; Derwin v. Parsons, 52 Mich. 425; Parker v. Coture, 63 Vt. 155. See, also, 1 Kinkead, Commentaries on Torts, sec. 206.

In Ohio, from which state our code was taken, there seems to have been no doubt as to the nature of an action for such an assault; 'and, in the absence of a disability on the part of the plaintiff (such as infancy), it must be brought within one year. Bormuth v. Beyer, 10 Ohio C. C. 291.

It is significant that libel, slander, assault and battery, malicious prosecution, and false imprisonment — -all personal wrongs — are included in the one year statute. The legislature evidently thought that the public interest requires a prompt prosecution of such actions. Charges of this nature are easily made and difficult' to defend against, and the lapse of more than one year after the alleged occurrence of the wrong allows time for the dispersion of witnesses, and makes the difficulty of defending such cases much greater. In Kramer v. Weigand, 91 Neb. 47, which plaintiff cites, it is said, speaking of the common law: “Damages for assault and battery were recoverable! in a civil action, but damages for rape were not, and where rape was part of the violence proved there could be no recovery for assault and battery. * * * This difference between the nature of the offenses was evidently observed by the legislature when the statute of limitations was enacted.” That case, therefore, furnishes no basis for plaintiff’s contention.

The judgment of the district court is

Affirmed.