Western Union Telegraph Co. v. Hill

Court of Appeals of Alabama, 1933.

25 Ala.App. 540, 150 So. 709.

Prosser, p. 34-36


Facts: Western Union was appealing a decision in favor of Hill.  Hill alleged that his wife was assaulted by Sapp, who worked for Western Union.  Mrs. Hill came to the office where Sapp was working, and he made lewd remarks and allegedly tried to touch Mrs. Hill.  Photos of the office show that the counter was too high and wide for Sapp to reach Hill unless Sapp stood on something or Mrs. Hill leaned over the counter.


Issue: Did Sapp commit assault?


Rule: An assault takes place when someone makes “an unlawful attempt to commit a battery”.  The court says that “there must be an intentional, unlawful, offer to touch the person of another” and that the other person must have “a well-founded fear of an imminent battery”.  Finally, the perpetrator must possess “the apparent present ability to effectuate the attempt”.


Analysis: The court seems to find that it’s an open question for the jury whether or not it was physically possible to commit the threatened battery.


Conclusion: The court finds there’s enough evidence to “justify an action for damages”.  The court reverses the ruling against Western Union on the ground that Sapp wasn’t acting within the scope of his employment.


Notes and Questions


  1. On Fuller v. State, based on the rule in the present case, I think it would depend on whether the plaintiff interpreted the gesture as an offer to touch her.  In the KKK case, I think the family members would have to prove they had a reasonable fear that the KKK members would actually shoot them and that they had the means to do so.  Maybe they would have to prove the guns were loaded.
  2. The stone throwing running bastard: It would depend on what distance the guy could reasonably be expected to hit the other person.  The test might be when the plaintiff is actually scared of getting hit.  The interesting thing is that whether it was an assault would partly depend on how good a stone thrower the bastard is.  If this dude is Joe Montana, it would be assault a lot closer than if it was, say, an old lady.
  3. Bringing a gun to an interview: I think it would depend on the mores of the society at the time.  Maybe in 1901 in Georgia it was reasonable to carry guns around everywhere at all times, and carrying a gun didn’t necessarily mean you planned to use it soon, or ever.  In today’s society, if you’re seen with a gun pretty much anywhere, people will be scared that you’re planning to shoot them immediately.
  4. Fear: I’m not sure how the court meant to use it here.  Sometimes fear can just mean suspicion.  It’s hard to say someone hasn’t done something wrong just because the victim wasn’t afraid.  In terms of social policy, we want a potential assailant to be deterred from attacking anybody, even if they don’t know if they have a black belt or not.  But let’s say Mrs. Hill did have a black belt.  If you use the court’s first definition of assault—“an unlawful attempt to commit a battery, incomplete by reason of some intervening cause”—then despite the black belt, assault certainly occurred.  It’s just that the black belt was the intervening cause.  A lawyer might try to prove fear anyway because that might influence the jury in its decision about who wins and how much money they get.
  5. Allen v. Hannaford: if the gun isn’t loaded, that doesn’t mean there isn’t still the apparent present ability to batter.  I suppose it would be different if the target of the alleged assault knew that the gun was unloaded.  Even so, if you brandish an unloaded gun at someone, that person might reasonably conclude you’re out to hurt them somehow, even if not with the gun.  Castiglione v. Galpin: I think this goes back to the mores of the time.  If a reasonable person would conclude that leaving a gun in your lap suggests you’re going to use it to blow somebody’s brains out, then that’s assault.  If people leave guns on their lap all the time and no one thinks anything of it, then I think it’s not assault.
  6. OK!  That’s weird and interesting.
  7. This makes the distinction between criminal assault and the civil tort of assault.
  8. I think the case references imply that if there is not an immediate threat, there’s no assault.  “I’m going to blow you up with my mega super laser blaster that I haven’t invented yet!”  I don’t think this would constitute assault even if you built the mega super blaster later and brandished it at the other person.
  9. Okay, are these assault?
    1. I don’t think anything where you say “if it weren’t for this, I would do this” could be assault.  You’re clearly implying to the person that you’re not planning on beating them up now.
    2. Same deal.  “If you weren’t an old man…”  But apparently I am.  So how I can reasonably fear being knocked down?  I guess the thing with these first two cases is: how can you tell if the alleged assailant is being sincere?
    3. Same deal again, but getting closer to the line.
    4. This is tantamount to “I’m going to hit you”, I think.  It would depend on how people interpreted this language at that time.  I think this would be assault though because it’s not a “If this were true than I’d hit you”.
    5. This is certainly another crime, but I don’t think it’s assault because it seems clearly implied that if you do pay the guy his money he will not take your life.  This sounds like robbery, though, but that’s not a tort, I don’t think.
  10. “Blow your brains out” vs. “hanky”: as far as the standard for assault speaks to the mental state of the plaintiff, the words here make a big difference.  I have nothing to fear from a handkerchief, but a gun is going to make me quite reasonably scared.
  11. No way!  If I say these words, it’s not me that has the ability to carry out the potential battery.  This certainly falls short.  From a policy standpoint, we certainly don’t want to forbid people from warning others of imminent danger.  Then again, maybe the implication is that there really is no rattlesnake.  Of course, if there is no assault, then all that’s left is words, and we already know from Note 8 that words can’t make an assault all by themselves.


Back to Torts Notes