Herring v. Lawrence Warehouse Co.

72 S.E.2d 453, 222 S.C. 226

• Court: Supreme Court of South Carolina
• Decided: September 26, 1952
• Docket: 16660
• Status: Published

Opinions

Order on Petition for Rehearing

PER CURIAM.

The petition for rehearing filed in this case by the respondent, points out:

“That the opinion of this Court sets forth that an error was committed by the trial court with respect to its charge concerning only the cause of action for libel and slander, and on the basis of such erroneous charge, reversed the case and granted a new trial; that the opinion of this Court, however, does not set forth or contain an allegation of error on the part of the court below, or otherwise, with respect to the separate and distinct cause of action for assault and battery, and in the absence of error by the court below with respect to the assault and battery cause of action, the judgment of the court below with respect to this separate and distinct cause of action for assault and battery should have been affirmed.”

The appellant by his exceptions raised the issue that the trial court committed error in its charge to the jury with reference to the law of assault and battery. The failure of this Court to pass upon the question was entirely inadvertent.

Upon due consideration, it is ordered that the following be added to the opinion heretofore filed.

The trial judge charged the jury as follows, upon request of the defendant (respondent here) :

“I charge you that the intent to inflict injury is a necessary element of assault and battery, and that unless you find from the evidence that the defendant intended to inflict injury upon the plaintiff, the plaintiff has failed to prove that an assault and battery was committed, and in this connection your verdict must be for the defendant.”

It is argued that the foregoing charge was erroneous, in that an intent to inflict injury is not a necessary element in a civil action of assault and battery.

The appellant testified that the respondent, through its agent, Mr. Payne, committed an assault and battery upon him at the time of his dismissal by grasping his arm in a rude and angry manner when demanding the keys to the warehouse in which the machinery was kept.

There is a well recognized distinction between criminal assault and a civil action for an assault and battery. In civil actions, the intent, while pertinent and relevant, is not an essential element. The rule, supported by the weight of authority, is that the defendant’s intention does not enter into the case, for, if reasonable fear of bodily harm has been caused by the conduct of the defendant, this is an assault. “So it has .been held that, even if an assault be unintentional, yet if it is recklessly committed defendant may be liable for the resulting damages.” 6 C. J. S., Assault and Battery, § 4, page 798. “It is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree, which constitutes the battery; and it is unnecessary that the contact be effected by a blow, as any forcible contact is sufficient * * 6 C. J. S., Assault and Battery, § 9.

The same principle is stated in 4 Am. Jur., Sec. 5, Page 128: “Where, however, the basis of an action is assault and battery, the intention with which the injury was done is immaterial so far as the maintenance of the action is concerned, provided the act causing the injury was wrongful, for if the act was wrongful, the intent must necessarily have been wrongful * *

In our opinion, the trial judge committed prejudicial error in charging the jury that the intent to inflict injury is a necessary element in a civil action of as-. sault and battery.

Other grounds stated in the petition for rehearing are without merit, and the petition is hereby denied.

Judgment reversed.