Western Union Telegraph
Co. v. Hill
Court of Appeals of Alabama, 1933.
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
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
- 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.
- 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.
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.
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
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.
- OK! That’s weird and interesting.
makes the distinction between criminal assault and the civil tort of
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.
are these assault?
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
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?
deal again, but getting closer to the line.
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”.
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.
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
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
to Torts Notes