80 Wis. 523
50 N.W. 403

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge. Reversed.

Action by Andrew Vosburg against George Putney for personal injuries. From a judgment for plaintiff, defendant appeals.

The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than 14 years of age, and the defendant a little less than 12 years of age. The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84, 47 N. W. Rep. 99. The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal, and require no repetition. On the last trial the jury found a special verdict, as follows: “(1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) At what sum do you assess the damages of the plaintiff? A. Twenty-five hundred dollars.” The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff, for $2,500 damages and costs of suit, was duly entered. The defendant appeals from the judgment. [50 N.W. 403] M. S. Griswold and T. W. Haight, ( J. V. Quarles, of counsel,) for appellant, to sustain the proposition that where there is no evil intent there can be no recovery, cited: 2 Greenl. Ev. §§ 82-85; 2 Add. Torts, § 790; Cooley, Torts, p. 162; Coward v. Baddeley, 4 Hurl. & N. 478; Christopherson v. Bare, 11 Q. B. 473; Hoffman v. Eppers, 41 Wis. 251;Krall v. Lull, 49 Wis. 405, 5 N. W. Rep. 874; Crandall v. Transportation Co., 16 Fed. Rep. 75; Brown v. Kendall, 6 Cush. 292.

Ryan & Merton, for respondent.

Several errors are assigned, only three of which will be considered.

I. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant's motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful. Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of [50 N.W. 404] the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

II. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to the wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick, and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a witness for plaintiff, (who was plaintiff's attending physician,) elicited on cross-examination, tends to some extent to establish such claim. Dr. Bacon first saw the injured leg on February 25th, and Dr. Philler, also one of plaintiff's witnesses, first saw it March 8th. Dr. Philler was called as a witness after the examination of the plaintiff and Dr. Bacon. On his direct examination he testified as follows: “I heard the testimony of Andrew Vosburg in regard to how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss More, and heard where he said he received this kick on that day.” (Miss More had already testified that she was the teacher of the school, and saw defendant standing in the aisle by his seat, and kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr. Philler: “After hearing that testimony, and what you know of the case of the boy, seeing it on the 8th day of March, what, in your opinion, was the exciting cause that produced the inflammation that you saw in that boy's leg on that day?” An objection to this question was overruled, and the witness answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.” It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to plaintiff's leg. The plaintiff testified to two wounds upon his leg, either of which might have been such proximate cause. Without taking both of these wounds into consideration, the expert could give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in the hypothetical question propounded to him, one of these probable causes was excluded from the consideration of the witness, and he was required to give his opinion upon an imperfect and insufficient hypothesis,--one which excluded from his consideration a material fact essential to an intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January being thus prevented, the witness had but one fact upon which to base his opinion, to-wit, the fact that defendant kicked plaintiff on the shin-bone. Based, as it necessarily was, on that fact alone, the opinion of Dr. Philler that the kick caused the injury was inevitable, when, had the proper hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler to the hypothetical question put to him may have had, probably did have, a controlling influence with the jury, for they found by their verdict that his opinion was correct. Surely there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter. The objection to the question put to Dr. Philler should have been sustained. The error in permitting the witness to answer the question is material, and necessarily fatal to the judgment.

III. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. Railway Co., 54 Wis. 342, 11 N. W. Rep. 356, 911, to be that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. The chief justice and the writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractu, and not ex delicto, and hence that a different rule of damages--the rule here contended for -- was applicable. We did not question that the rule in actions for tort was correctly stated. That case rules this on the question of damages. The remaining errors assigned are upon the rulings of the court on objections to testimony. These rulings are not very likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal. The judgment of the circuit court must be reversed, and the cause will be remanded for a new trial.

63 Ill. 553
1872 WL 8247 (Ill.)

Supreme Court of Illinois.

June Term, 1872.

APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

Messrs. SHAW, HAYWARD & SMITH, for the appellant.

Messrs. WILSON & HUTCHINSON, and Mr. JONATHAN PALMER, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The ground mainly relied on for the reversal of the judgment in this case is, that the damages are excessive, being $1000.

The case presented is this: There was a trial of an action of trespass between the parties, wherein the appellee was defendant, in the circuit court of Jasper county. At the close of the trial the court adjourned, and, immediately upon the adjournment, in the court room, in the presence of a large number of persons, the appellant deliberately spat in the face of the appellee.

So long as damages are allowable in any civil case, by way of punishment or for the sake of example, the present, of all cases, would seem to be a most fit one for the award of such damages. [63 Ill. 554] The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to personal violence as the only means of redress.

Suitors, in the assertion of their rights, should be allowed approach to the temple of justice without incurring there exposure to such disgraceful indignities, in the very presence of its ministers.

It is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity.

An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode. The act was the very refinement of malice. The defendant appears to be a man of wealth; we can not say that he has been made to pay too dearly for the indulgence.

We have carefully looked into the instructions given and refused, and do not perceive any substantial error in respect to them.

The judgment must be affirmed.

Judgment affirmed.

[46 Wn.2d 198] [279 P.2d 1092] Kennett, McCutcheon & Soderland, Seattle, James P. Healy, Tacoma, for appellant.

Frederick J. Orth, Rode, Cook, Watkins & Orth, Seattle, for respondent.

The liability of an infant for an alleged battery is presented to this court for the first time. Brian [46 Wn.2d 199] Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey's version of what happened, and made the following findings:

'III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

'IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.' (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate [46 Wn.2d 200] the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of [279 P.2d 1093] her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions, see Bohlen, 'Liability in Tort of Infants and Insane Persons,' 23 Mich.L.Rev. 9, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17 Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.

In our analysis of the applicable law, we start with the basis premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries.

The trial court's finding that Brian was a visitor in the Garratt back yard is supported by the evidence and negatives appellant's assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

'An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if

'(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

'(b) the contact is not consented to by the other or the [46 Wn.2d 201] other's consent thereto is procured by fraud or duress, and

'(c) the contact is not otherwise privileged.'

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

'Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.' See, also, Prosser on Torts 41, § 8.

We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i. e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the 'Character of actor's intention,' relating to clause (a) of the rule from the Restatement heretofore set forth:

'It is not enough that the act itself is intentionally done and this, even [279 P.2d 1094] though the actor realizes or should realize [46 Wn.2d 202] that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor's conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.'

A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have [46 Wn.2d 203] discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian's age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

From what has been said, it is clear that we find no merit in plaintiff's contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us.

Nor do we find any error in the record that warrants a new trial.

What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

It is clear to us that there was no change in theory so far as the plaintiff's case was concerned. The trial court consistently from beginning to end recognized that if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court's comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all [279 P.2d 1095] the evidence, the trial court can find that Brian knew with substantial [46 Wn.2d 204] certainty that the plaintiff intended to sit down where the chair had been before he moved it, and still without reference to motivation.

The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking questions concerning statements made at Brian's home and in a court reporter's office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

It is argued that some courts predicate an infant's liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

[46 Wn.2d 205] The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice, and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right 'for good cause shown' to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

Remanded for clarification.

SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.

Lauren E. Jones, Jones Associates, Brenda Coville Harrigan, Gunning, LaFazia & Gnys, Robert S. Thurston, Jones Associates, Providence, for defendant.

This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant's appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother's car to Barry Pontiac-Buick, Inc. (Barry Pontiac)^[1] in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent's Alignment Service (Kent's Alignment), also located in Newport, where the car passed inspection.

The plaintiff then contacted a local television news "troubleshooter" reporter, presumably to report her experience at the two inspection sites. Shortly after Kent's Alignment had inspected plaintiff's car, Barry Pontiac phoned Kent's Alignment to ask that the car be checked again and the sticker removed because the brakes "were bad." Accordingly Edward Kent (Kent), the owner of Kent's Alignment, set January 27, 1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent's garage.

Kent's Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent's Alignment, accompanied by defendant, who was employed by Barry Pontiac.

[692] The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

The plaintiff testified that defendant "lunged" at her and "grabbed [her] around around [sic] the shoulders,"^[2] although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant "spun around wrestling." According to plaintiff, defendant released her after someone said, "let her go." The plaintiff then left the garage with her goddaughter.

Seyster and Stevens also testified at trial, and Kent's deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant "grab her [plaintiff's] left shoulder and try to get the picture with his other hand," but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant "hollering" that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as "don't take my picture." Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, "who gave you permission to take my picture?" then walked around the car to plaintiff, placed his index finger on the camera and again asked, "who gave you permission to take my picture?" The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of "pain radiating down my right leg * * *," pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne's Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described "[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1]." Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

On April 28, 1987, Kenney wrote a "To Whom it May Concern" letter, in which he stated:

"This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne's Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. [693]Therefore, this change is probably causally related with the assault."

On June 1, 1987, Kenney wrote a second "To Whom it May Concern" letter, stating: "The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not." (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff's attorney:

"It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-S1 on the right is a permanent injury." (Emphasis added.)

The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

On January 6, 1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiff's counsel and stated:

"To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature."

On January 11, 1993, Kenney swore an affidavit entitled: "Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled 'Evidence of Charges for Medical and Hospital Services' " that amended his affidavit of 1987. Attached to the amended affidavit were Kenney's letter of January 6, 1993, the radiology report from St. Anne's Hospital dated April 17, 1987, and the receipts from plaintiff's five visits to Kenney's office. The original affidavit had contained receipts of the office visits, Kenney's letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

The amended affidavit stated in part:

"Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *

(3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.

(4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987."

Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiff's alleged injury. Kenney was not deposed, nor did he testify at trial.

The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant's conduct was "sufficiently egrigious [sic]," punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Displays, [694] Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983). "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Id. It is a plaintiff's apprehension of injury which renders a defendant's act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) ("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al., supra, at 44.

The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." Proffitt, 463 A.2d at 517.

In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

"Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person." (Emphasis added.)

The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was [695] not competent.^[3] We agree.

At the start of trial, defendant objected to the admission of Kenney's January 11, 1993 affidavit which refers to Kenney's opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney's affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.^[4] Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney's 1993 letter stated that the injury to plaintiff was "permanent in nature." However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was "probably not permanent." Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff's attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I.1986), this court stated that, "The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony." Further, we have noted that, "Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof." Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not "clear and unambiguous." Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant's assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that "the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion." The trial justice's apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

The defendant next argued that the trial justice's award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were "not significant in [the] Court's [696] mind." Such a conclusion, however, ignored the contradictions between the witnesses' testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.^[5] The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

This court will not disturb an award for pain and suffering unless the award " 'shocks the conscience' or is grossly excessive." Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I.1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant's "willfulness, recklessness or wickedness," because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

[1] After plaintiff rested, Barry Pontiac moved to dismiss the suit against it pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. The trial justice granted the motion, and therefore, Barry Pontiac is not a party to this appeal.

[2] In a statement describing the incident to the Newport Police, plaintiff stated, "HE GRABBED MY COAT[.] I LUNGED BACKWARD HURTING MY BACK[.]" In a Social Security Administration "Reconsideration Disability Report" dated March 20, 1987, plaintiff stated that she had been "attack [sic] by a merchanic [sic] from Barry Pontiac" and that she had been "[t]hrown against a wall at Kents [sic] garage [.]" The plaintiff testified at trial that, notwithstanding the Disability Report, she had not been thrown against a wall.

[3] The affidavit was admitted under G.L.1956 (1985 Reenactment) § 9-19-27, which states in pertinent part:

"(a) [I]n any proceeding commenced in any court * * *, an itemized bill and reports, including hospital medical records, relating to medical * * * services * * * and/or any report of any examination of said injured person, including, but not limited to, hospital medical records subscribed and sworn to * * * by the physician * * * shall be admissible as evidence of * * * the necessity of such services or treatment, the diagnosis of said physician * * *, the prognosis of such physician * * * the opinion of such physician * * * as to proximate cause of the condition so diagnosed, the opinion of such physician * * * as to disability or incapacity, if any, proximately resulting from the condition so diagnosed * * *."

[4] Counsel for Barry Pontiac reported at trial that Kenney had retired six years earlier and had sent his medical records to "dead files."

[5] The following exchanges between plaintiff and defense counsel illustrate the nature of plaintiff's testimony:

"Q So it's possible that you told Dr. Kenney that you were shaken by the assailant?

"A Well, I was shaken, but maybe not in the terms--but I was shook up. That's it. You know what I mean. I was shook up mentally. I was ascared [sic]."

and again,

"Q Are you claiming that he [Silvia] physically picked you up and swung you around?

"A Well, my feet wasn't hitting the floor. * * *.

"Q So in addition to Mr. Silvia grabbing you by the shoulders he physically lifted you off the ground, is that correct?

"A I can't say for sure because I felt dizzy. The room was spinning. So I felt like I was off the floor, but I don't know because I was just moving around fast."

     (1) An actor is subject to liability to another for assault if

          (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

          (b) the other is thereby put in such imminent apprehension.

     (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

     An actor who intentionally causes physical harm is subject to liability for that harm.

     (1) An actor is subject to liability to another for battery if

          (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

          (b) an offensive contact with the person of the other directly or indirectly results.

     (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

Suffolk. January 19, 1891. — September 1, 1891.

Present: FIELD, C. J., ALLEN, HOLMES, KNOWLTON, & MORTON, JJ.

Carrier by Sea — Surgeon — Assault — Negligent Vaccination.

If the surgeon of a foreign steamship, bringing immigrants to a port of this country where the quarantine regulations require vaccination as a prerequisite to landing, vaccinates one of them whose behavior indicates consent on her part, whatever her unexpressed feelings may be, he is justified in his act, and the ship-owner is not liable therefor as for an assault.

A ship-owner who provides a competent surgeon, whom the passengers may employ if they choose, is not liable for his negligence in the medical treatment of a passenger, either at common law or by the TJ. S. St. of August 2, 1882, § 5, which requires every vessel transporting immigrant passengers to carry a surgeon or [273] medical practitioner, "who shall be rated as such in the ship's articles, and who shall be provided with surgical instruments, medical comforts, and medicines," and makes the master of the vessel liable to a penalty for its violation. In an action against a steamship company for assault by a ship's surgeon in vaccinating a steerage passenger brought toa port in this State, evidence consisting of the printed quarantine regulations of the port, to the effect that only such steerage passengers as held certificates from such surgeon that they had been vaccinated would be allowed to land without detention or vaccination, and of testimony that such regulations were carried out, was heldto be properly admitted.

TORT, for an assault, and for negligently vaccinating the plaintiff, a steerage passenger on the steamship Catalonia. Trial in the Superior Court, before Staples, J., who ruled that, upon the evidence, the plaintiff could not maintain the action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion.

E. N. Hill & F. Cunningham, for the plaintiff.

G. Putnam, (T. Russell with him,) for the defendant.

This case presents two questions: first, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on shipboard, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon's conduct must be considered in connection with the circumstances. If the plaintiff's behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 577, 578. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550, 552. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of immigrants, to see that they are protected from small-pox by vaccination, and that only those [274] persons who hold a certificate from the medical officer of the steamship, stating that they are so protected, are permitted to land without detention in quarantine or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all immigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship's medical officer to vaccinate such as needed vaccination, were posted about the ship, in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff's testimony, which in this particular is undisputed, it appears that about two hundred women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about fifteen feet from the surgeon, and saw them form in a line and pass in turn before him; that he "examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark"; that she did not hear him say anything to any of them; that upon being passed by they each received a card and went on deck; that when her turn came she showed him her arm, and he looked at it and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before and it left no mark; "that he then said nothing, that he should vaccinate her again"; that she held up her arm to be vaccinated; that no one touched her; that she did not tell him that she did not want to be vaccinated; and that she took the ticket which he gave her certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that [275] purpose. Viewing his conduct in the light of the circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.

The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination, as alleged in the second count, was negligently performed. "There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter." Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count. Whether there was any evidence of negligence of the surgeon, we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is, that he is a servant engaged in the defendant's business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the act of Congress of August 2, 1882, § 5, it is provided that "every steamship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly qualified and competent surgeon or medical practitioner, who shall be rated as such in the ship's articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given, in any case of sickness or disease, to any of the passengers, or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars."

Under this statute it is the duty of ship-owners to provide a competent surgeon, whom the passengers may employ if they [276] choose, in the business of healing their wounds and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship's surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves, if they are sick, or may go without treatment if they prefer; and if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him. This is the whole requirement of the statute of the United States applicable to such cases, and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steamship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person, it would be unreasonable to hold them responsible for all the particulars of his treatment, when he is engaged in the business of other persons in regard to which they are powerless to interfere.

The reasons on which it is held, in the courts of the United States and of Massachusetts, that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53, 67. Yates v. Brown, 8 Pick. 23. The pilot is en [277] gaged in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such cases the owners are not liable. Carruthers v. Sydebotham, 4 M. & S. 98. The Protector, 1 W. Robinson, 45. The Maria, 1 W. Robinson, 95.

The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the Court of Appeals of New York, in Laubheim v. De Koninglyke Stoomboot Co. 107 N.Y. 228. See also Secord v. St. Paul, Minneapolis, & Manitoba Railway, 18 Fed. Rep. 221; McDonald v. Massachusetts General Hospital, 120 Mass. 432. We are of opinion that on both parts of the case the rulings at the trial were correct.

The evidence which was excepted to, consisting of the printed quarantine regulations above referred to, and of testimony that only the steerage passengers holding a surgeon's certificate were allowed to land, all others being vaccinated by the port physician or detained at quarantine, was rightly admitted.

Exceptions overruled.

VOL. 154. 18

[634 N.E.2d 698] [92 Ohio App.3d 233] Kircher, Robinson, Cook, Newman & Welch and Robert B. Newman, Cincinnati, for appellant.

Strauss & Troy and William K. Flynn, Cincinnati, for appellees WLW Jacor Communications, Inc. and William Cunningham.

Waite, Schneider, Bayless & Chesley, Stanley M. Chesley and Paul M. DeMarco, Cincinnati, for appellee Andy Furman.

The plaintiff-appellant, Ahron Leichtman, appeals from the trial court's order dismissing his complaint against the defendants-appellees, WLW Jacor Communications ("WLW"), William Cunningham and Andy Furman, for battery, invasion of privacy, and a violation of Cincinnati Bd. of Health Reg. No. 00083. In his single assignment of error, Leichtman contends that his complaint was sufficient to state a claim upon which relief could be granted and, therefore, the trial court was in error when it granted the defendants' Civ.R. 12(B)(6) motion. We agree in part.

In his complaint, Leichtman claims to be "a nationally known" antismoking advocate. Leichtman alleges that, on the date of the Great American Smokeout, he was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show host, lit a cigar and repeatedly blew smoke in Leichtman's face "for the purpose of causing physical discomfort, humiliation and distress."

Under the rules of notice pleading, Civ.R. 8(A)(1) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." When construing a complaint for failure to state a claim, under Civ.R. 12(B)(6), the court assumes that the factual allegations on the face of the complaint are true. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. For the court to grant a motion to dismiss, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Id. A court cannot dismiss a complaint under Civ.R. 12(B)(6) merely because it doubts the plaintiff will prevail. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 69 O.O.2d 178, 318 N.E.2d 557. Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal. Id. at 182, 69 O.O.2d at 180, 318 N.E.2d at 560.

Leichtman contends that Furman's intentional act constituted a battery. The Restatement of the Law 2d, Torts (1965), states:

"An actor is subject to liability to another for battery if

"(a) he acts intending to cause a harmful or offensive contact with the person of the other * * *, and

"(b) a harmful contact with the person of the other directly or indirectly results[; or]^[1]

[92 Ohio App.3d 235] "(c) an offensive contact with the person of the other directly or indirectly results."^[2] (Footnote added.)

[634 N.E.2d 699] In determining if a person is liable for a battery, the Supreme Court has adopted the rule that "[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact." Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167. It has defined "offensive" to mean "disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness." State v. Phipps (1979), 58 Ohio St.2d 271, 274, 12 O.O.3d 273, 275, 389 N.E.2d 1128, 1131. Furthermore, tobacco smoke, as "particulate matter," has the physical properties capable of making contact. R.C. 3704.01(B) and 5709.20(A); Ohio Adm.Code 3745-17.

As alleged in Leichtman's complaint, when Furman intentionally blew cigar smoke in Leichtman's face, under Ohio common law, he committed a battery. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar. Lacey v. Laird (1956), 166 Ohio St. 12, 1 O.O.2d 158, 139 N.E.2d 25, paragraph two of the syllabus. The rationale is explained by Roscoe Pound in his essay "Liability": "[I]n civilized society men must be able to assume that others will do them no intentional injury--that others will commit no intentioned aggressions upon them." Pound, An Introduction to the Philosophy of Law (1922) 169.

Other jurisdictions also have concluded that a person can commit a battery by intentionally directing tobacco smoke at another. Richardson v. Hennly (1993), 209 Ga.App. 868, 871, 434 S.E.2d 772, 774-775. We do not, however, adopt or lend credence to the theory of a "smoker's battery," which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. Ezra, Smoker Battery: An Antidote to Second-Hand Smoke (1990), 63 S.Cal.L.Rev. 1061, 1090. Also, whether the "substantial certainty" prong of [92 Ohio App.3d 236] intent from the Restatement of Torts translates to liability for secondary smoke via the intentional tort doctrine in employment cases as defined by the Supreme Court in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus, need not be decided here because Leichtman's claim for battery is based exclusively on Furman's commission of a deliberate act. Finally, because Leichtman alleges that Furman deliberately blew smoke into his face, we find it unnecessary to address offensive contact from passive or secondary smoke under the "glass cage" defense of McCracken v. Sloan (1979), 40 N.C.App. 214, 217, 252 S.E.2d 250, 252, relied on by the defendants.

Neither Cunningham nor WLW is entitled to judgment on the battery claim under Civ.R. 12(B)(6). Concerning Cunningham, at common law, one who is present and encourages or incites commission of a battery by words can be equally liable as a principal. Bell v. Miller (1831), 5 Ohio 250; 6 Ohio Jurisprudence 3d (1978) 121-122, Assault, Section 20. Leichtman's complaint states, "At Defendant Cunningham's urging, Defendant Furman repeatedly blew cigar smoke in Plaintiff's face."

With regard to WLW, an employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329-330, 587 N.E.2d 825, 828-829. However, whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact. Id. at 330, 587 N.E.2d at 825. Accordingly, Leichtman's claim for battery with the allegations against the three defendants in the second count of the complaint is sufficient to withstand a motion to dismiss under Civ.R. 12(B)(6).

By contrast, the first and third counts of Leichtman's complaint do not state claims upon which relief can be granted. The trial court correctly granted the Civ.R. 12(B)(6) motion as to both counts. In his first count, Leichtman alleged a tortious invasion of his privacy. See, generally, Restatement, supra, at 376, Section 652B, as adopted by Sustin v. Fee (1982), 69 Ohio St.2d 143, 145, 23 O.O.3d 182, 183-184, 431 N.E.2d 992, 993. A claim for invasion of privacy may involve any one of four distinct torts. Prosser, Privacy (1960), 48 Cal.L.Rev. 383. The tort that is relevant here requires some substantial intrusion into a plaintiff's solitude, seclusion, habitation, or affairs that would be highly [634 N.E.2d 700] offensive to a reasonable person. See, e.g., Restatement, supra, at 378-379, Section 652B, Comments a to d; Killilea v. Sears Roebuck & Co. (1985), 27 Ohio App.3d 163, 166, 27 OBR 196, 198-199, 499 N.E.2d 1291, 1294. Leichtman acknowledges that he willingly entered the WLW radio studio to make a public radio appearance with Cunningham, who is known for his blowtorch rhetoric. Therefore, Leichtman's [92 Ohio App.3d 237] allegations do not support his assertion that Furman, Cunningham, or WLW intruded into his privacy.

In his third count, Leichtman attempts to create a private right of action for violation of Cincinnati Bd. of Health Reg. No. 00083, which makes it illegal to smoke in designated public places. Even if we are to assume, for argument, that a municipal regulation is tantamount to public policy established by a statute enacted by the General Assembly, the regulation has created rights for nonsmokers that did not exist at common law. Bd. of Health Reg., supra, at Sections 00083-7 and 00083-13. Therefore, because sanctions also are provided to enforce the regulation, there is no implied private remedy for its violation. R.C. 3707.99, 3707.48(C); Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90; Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 248-250, 75 O.O.2d 291, 293-294, 348 N.E.2d 144, 147 (superseded by statute on other grounds).

Arguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They delay cases that are important to individuals and corporations and that involve important social issues. The result is justice denied to litigants and their counsel who must wait for their day in court. However, absent circumstances that warrant sanctions for frivolous appeals under App.R. 23, we refuse to limit one's right to sue. Section 16, Article I, Ohio Constitution states, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

This case emphasizes the need for some form of alternative dispute resolution operating totally outside the court system as a means to provide an attentive ear to the parties and a resolution of disputes in a nominal case. Some need a forum in which they can express corrosive contempt for another without dragging their antagonist through the expense inherent in a lawsuit. Until such an alternative forum is created, Leichtman's battery claim, previously knocked out by the trial judge in the first round, now survives round two to advance again through the courts into round three.

We affirm the trial court's judgment as to the first and third counts of the complaint, but we reverse that portion of the trial court's order that dismissed the battery claim in the second count of the complaint. This cause is remanded for further proceedings consistent with law on that claim only.

Judgment accordingly.

DOAN, P.J., and HILDEBRANDT and GORMAN, JJ., concur.

[1] Harmful contact: Restatement of the Law 2d, Torts (1965) 25, Section 13, cited with approval in Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167.

[2] Offensive contact: Restatement, supra, at 30, Section 18. See, generally, Love at 99-100, 524 N.E.2d at 167, in which the court: (1) referred to battery as "intentional, offensive touching"; (2) defined offensive contact as that which is "offensive to a reasonable sense of personal dignity"; and (3) commented that if "an arrest is made by a mere touching * * * the touching is offensive and, unless privileged, is a 'battery.' " Id., 37 Ohio St.3d at 99, 524 N.E.2d at 167, fn. 3. See, also, Schultz v. Elm Beverage Shoppe (1988), 40 Ohio St.3d 326, 328, 533 N.E.2d 349, 352, fn. 2 (citing Restatement, supra, at 22, Chapter 2, Introductory Note), in which the court identified an interest in personality as "freedom from offensive bodily contacts"; Keister v. Gaker (Nov. 8, 1978), Warren App. Nos. 219 and 223, unreported (battery is offensive touching).

475 N.W.2d 426

Docket No. 123785.

190 Mich.App. 141, 475 N.W.2d 426

Court of Appeals of Michigan.

Submitted Jan. 16, 1991, at Lansing.

Decided July 8, 1991, at 9:05 a.m.

Released for Publication Oct. 28, 1991.

[475 N.W.2d 427] [190 MICHAPP 141] Sommers, Schwartz, Silver & Schwartz, P.C. by Stanley S. Schwartz and Richard L. Groffsky, Southfield, for plaintiffs-appellants.

Stroup, Johnson & Tresidder, P.C. by Charles W. Johnson, Petoskey, for Michael V. Taylor, M.D.

Before NEFF, P.J., and SHEPHERD and McDONALD, JJ.

Plaintiffs, Cindy K. Werth and donald [190 MICHAPP 142] E. Werth, appeal as of right from an order of the circuit court granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant, Michael V. Taylor, M.D. We affirm.

Plaintiffs filed a civil battery claim against defendant Taylor based on his authorization of a blood transfusion for Cindy Werth despite plaintiffs' refusals. Plaintiffs also filed a medical malpractice claim against Taylor and other defendants. The medical malpractice claim is not the subject of this appeal.

The facts are not in dispute. Cindy and her husband Donald are Jehovah's Witnesses. It is unquestioned that they are both devoted adherents to the tenets of their chosen faith. According to Cindy Werth's deposition testimony, one of the most deeply held of these tenets is the belief that it is a sin to receive blood transfusions.

In August 1985, Cindy, the mother of two children, became pregnant with twins. About two months before the expected date of delivery, Cindy went to Alpena General Hospital to preregister. She filled out several forms, including a "Refusal to Permit Blood Transfusion" form. Cindy went into labor on May 8, 1986, and entered Alpena General Hospital on that date. While she was being admitted, Donald signed another "Refusal to Permit Blood Transfusion" form.

Cindy gave birth to her twins on the evening of May 8, 1986. Following delivery, Cindy was found to be bleeding from her uterus. Around 11:30 p.m., Dr. Cheryl Parsons was called. She performed a pelvic examination and discovered a great deal of clotting and a fair amount of bleeding. Dr. Parsons [190 MICHAPP 143] then discussed performing a dilation of the cervix and curettage of the uterine lining (D & C). As a result, Dr. Parsons began discussing with plaintiffs their refusals of blood transfusions.

Following this discussion, Cindy was taken to surgery. In the early hours of May 9, 1986, she was placed under general anesthesia, and Dr. Parsons proceeded to perform a D & C. The bleeding, however, continued. Defendant Taylor, an anesthesiologist, was then called to the hospital to examine Cindy. Cindy's blood pressure had risen significantly. At approximately 1:30 a.m., defendant Taylor observed mottling and cooling of the skin peripherally, premature ventricular activity, oozing of crystalloid material from her eyes, and a fairly rapid and significant fall in blood pressure. These observations prompted defendant Taylor to determine that a blood transfusion was medically necessary to preserve Cindy's life. He ordered the transfusion of packed red blood cells, but before the transfusion was given, Dr. Parsons informed him that Cindy was a Jehovah's Witness. Dr. Parsons testified that defendant responded by saying something like "that may be, but she needs the blood." A blood transfusion was then given.

Plaintiffs thereafter filed their medical malpractice action, alleging negligence by various defendants, including Taylor, and alleging battery against defendant Taylor.

Defendant Taylor filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that because Cindy's refusal was not conscious, competent, contemporaneous, and fully informed, defendant did not commit a battery in deciding to infuse blood. The trial court granted this motion and entered an order dismissing plaintiffs' claim against defendant Taylor.

Plaintiffs contend that the trial court erred in granting summary disposition where their refusal of a blood transfusion [475 N.W.2d 428] was made deliberately and voluntarily. They also contend that defendant's decision to perform that procedure with knowledge of this express refusal resulted in a battery, as well as a violation of the hospital's promise to honor plaintiffs' religious convictions, and that the potentially life-threatening situation did not alter plaintiffs' conscious, deliberate, and unequivocal refusal. Plaintiffs also claim that the court erred in holding that society's interest in preventing minors from becoming wards of the court could override plaintiffs' religious beliefs.

Defendant Taylor, on the other hand, contends that the trial court did not err in granting summary disposition, because plaintiffs did not unequivocally refuse the blood transfusion. He claims that, in the face of a life-threatening emergency, without a fully conscious and contemporaneous refusal, his decision to transfuse blood was appropriate and the court did not err in finding an implicit consent to the procedure authorized by him. Defendant Taylor also contends that the state's interest in preserving life authorized him to override plaintiffs' right to refuse blood transfusions on religious grounds. He claims that, while a patient may knowingly decline treatment, the patient has no right to demand inadequate treatment, and the courts will not require that such be committed.

Summary disposition based on MCR 2.116(C)(10) may be granted where, except for the amount of damages, there is no genuine issue regarding any [190 MICHAPP 145] material fact and the moving party is entitled to judgment as a matter of law.

A motion for summary disposition under this subrule tests whether there is factual support for a claim. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989). Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

A competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Health, --- U.S. ----, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). See anno: Patient's right to refuse treatment allegedly necessary to sustain life, 93 A.L.R.3d 67. Indeed, the whole concept of informed consent to treatment leads to an inference of its converse--informed refusal of treatment. Put another way, a competent adult may choose to give or withhold consent to medical treatment.

[190 MICHAPP 146] However, the law implies the consent of an unconscious patient to medical procedures needed to preserve the patient's life. Delahunt v. Finton, 244 Mich. 226, 229, 221 N.W. 168 (1928). See alsoYoung v. Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989). If a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Id.; Banks v. Wittenberg, 82 Mich.App. 274, 279, 266 N.W.2d 788 (1978). Consent may be expressed or implied. Young, supra; Banks, supra, p. 280, 266 N.W.2d 788. It has been held that consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent or where the patient seeks treatment or otherwise manifests a willingness to submit to a particular treatment. Young, supra; Banks, supra.

Here, the trial court determined that Cindy's refusals were made when she was contemplating merely routine elective surgery and not when life-threatening circumstances, were present and concluded that it could not be said that she made the decision to refuse a blood transfusion while in a competent state and while fully aware that death would result from such refusal. The record reflects the unexpected development of a medical emergency requiring blood transfusion to prevent death or serious compromise of the patient's well-being.

The decision of the trial court is supported by one reached by the Supreme Court of Pennsylvania in In re Estate of Dorone, 517 Pa. 3, 534 A.2d 452 (1987). In Dorone, the patient was a twenty-two-year-old Jehovah's Witness who required a blood transfusion during a cranial operation to [190 MICHAPP 147] relieve an acute subdural hematoma. Without the operation or transfusion, death was imminent. The patient was unconscious, and his parents refused consent to the blood transfusion. The court overruled the parents' refusal, stating:

Turning to the ultimate decisions the judge rendered, we feel that they were absolutely required under the facts he had before him. Those facts established that medical intervention, which necessarily included blood transfusions, could preserve Mr. Dorone's life. When evidence of this nature is measured against third party speculation as to what an unconscious patient would want there can be no doubt that medical intervention is required. Indeed, in a situation like the present, where there is an emergency calling for an immediate decision, nothing less than a fully conscious contemporaneous decision by the patient will be sufficient to override evidence of medical necessity. [Id., p. 9, 534 A.2d 452.]

Here, both plaintiffs signed "Refusal to Permit Blood Transfusion" forms. Following Cindy's delivery of twins, Dr. Parsons discussed these refusals with both plaintiffs. Cindy recalled their conversation as follows:

She--okay. We told her--she said, "I understand that you're one of Jehovah's Witnesses and that you won't take blood," and Don and I both said, "That's correct." And she said, "You mean to tell me if your wife's dying on the table that you're not going to give her blood?" And we said--Don said, "That's--well, I don't want her to have blood, but I don't want her to die. We want the alternative treatment."

* * * * * *

She said there would be no problem. It was a routine D & C, there was no problem with the blood.

* * * * * *

[190 MICHAPP 148] The idea of a blood transfusion, she made it sound that it wouldn't even be a problem. Blood wouldn't come into the picture. That's how I understood it.

Donald also testified regarding the conversation as follows:

At the time of the consent form, she gave it to my wife and had her look it over and read it, and she said--she acknowledged us as being one of Jehovah's Witnesses, and then she said, "Would you accept blood?" And we replied, "No." And then she made the remark, "Even if she was to die, you'd let her die?"

And at that point, I questioned, I said, "Well, how serious of a, you know, condition was she?" And the reason why we asked that is because, like I say, in different situations like there are Witnesses who have gone to hospitals, you know, if there was some type of real emergency, a lot of times they're shipped out or flown out. Different ones have gone to Ann Arbor and other places.

So at that time, I was just kind of questioning, well, how serious was it, you know. First of all, you say it's a routine D & C; then you mention that if she was to die, and so that's why I questioned it, and then she reassured us that there was no problem, nothing to it.

The following colloquy then occurred between defense counsel and Donald:

[475 N.W.2d 430] Q. So you never answered the question.

A. Oh, as far as the idea of dying?

Q. Yes.

A. I said no. The answer was no.

Q. Even if she was to die, you said "No blood."

A. Right.

Q. What did your wife say to that?

[190 MICHAPP 149] A. Well, she was right there and that was her feeling also.

Q. But you didn't have the feeling that that was part of the problem or a possibility? It was kind of an academic discussion, that she might die?

A. Well, she said it in a joking manner. It wasn't done as a serious matter. Being with a joking manner, that's why I asked her how serious it was and then she just--"Oh, there's no problem."

Q. Okay. So you weren't really biting the bullet because it didn't seem to be part of the problem that she was going to die or there was a risk of her dying?

A. At that point, no.

Dr. Parsons testified to the conversation as follows:

I recall discussing with her and her husband the fact that they were Jehovah's Witnesses and that she indicated that this was true. And I said, "Is it true that you do not want any blood transfusions?" She said, "No." He looked at me and said, "Do you think it's that bad?" And I said, "Not right now." And I didn't get any further answer from him in terms of whether he felt that if it became that bad he might change his mind. And I left it at that.

She also described Donald's response as "wishy-washy."

Following this discussion, Cindy underwent surgery. She was placed under general anesthesia, and Dr. Parsons performed a D & C. Cindy did not regain consciousness again until after the operation and transfusion of blood were performed. Defendant Taylor testified that he was aware, before deciding to infuse blood, that Cindy was a Jehovah's Witness. No attempt was made to bring Cindy to consciousness in order to obtain her approval, and defendant Taylor testified that this [190 MICHAPP 150] option was "foolhardy." No attempt was made to discuss his decision with Donald because defendant saw nothing to be gained from it. He did not believe Donald could give or deny permission for a blood transfusion.

We agree with the principle in Dorone that it is the patient's fully informed, contemporaneous decision which alone is sufficient to override evidence of medical necessity. The fact that defendant did not obtain the consent of Cindy's husband does not preclude the granting of summary disposition. It is undisputed that Cindy was unconscious when the critical decision regarding the blood transfusion to avoid her death was being made. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed. Thus, a record could not be developed regarding Cindy's refusal which would leave open an issue upon which reasonable minds could differ.

Our holding in this case is narrow. Without contemporaneous refusal of treatment by a fully informed, competent adult patient, no action lies for battery and summary disposition was proper.

Because of our resolution of this case, we need not address the issue whether the trial court erred in holding that the state had a valid interest in preventing Cindy's death.

Affirmed.

210 S.E.2d 145

215 Va. 338

Supreme Court of Virginia.

Dec. 2, 1974.

[210 S.E.2d 146] William M. McClenny, Amherst (McClenny Associates, Amherst, on brief), for plaintiff in error.

Wm. Rosenberger, Jr., Lynchburg (Richard E. Spies, Charlottesville, on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

Plaintiff, Danny Lee Womack, instituted this action against the defendant, Rosalie Eldridge, to recover compensatory and punitive damages for mental shock and distress allegedly caused by the defendant's willful, wanton, malicious, fraudulent and deceitful acts and conduct toward him. The question of punitive damages was stricken by the trial court and the jury returned a verdict for the plaintiff in the amount of $45,000. The trial court set aside the verdict Non obstante veredicto on the ground that there could be no recovery for emotional distress in the absence [215 Va. 339] of 'physical damage or other bodily harm.' We granted plaintiff a writ of error. Defendant did not assign cross-error, although the record shows she excepted to many rulings in the court below and several of them are relied upon in her brief and argument before us.

Plaintiff assigned numerous errors, but the controlling question is whether one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress absent any bodily injury.

The evidence shows that defendant had been engaged in the business of investigating cases for attorneys for many years. She was employed by Richard E. Seifert and his attorney to obtain a photograph of the plaintiff to be used as evidence in the trial of Seifert, who was charged with sexually molesting two young boys. On May 27, 1970, about 8 a.m., defendant went to plaintiff's home and upon gaining admittance told him that she was a Mrs. Jackson from the newspaper and that she was writing an article on Skateland. Defendant asked plaintiff, who was a coach at Skateland, if she could take a picture of him for publication with the article, and he readily consented.

Shortly thereafter defendant delivered the photograph to Seifert's counsel while he was representing Seifert at his preliminary hearing. Seifert's counsel showed plaintiff's photograph to the two young boys and asked if he was the one who molested them. When they replied that he was not, counsel withdrew the photograph and put it in his briefcase. However, the Commonwealth's Attorney then asked to see the photograph and requested additional information about the person shown in it. Defendant was then called to the stand and she supplied the plaintiff's name and address. Plaintiff's photograph in no way resembled Seifert, and the only excuse given by defendant for taking plaintiff's picture was that he was at Skateland when Seifert was arrested. However, the offenses alleged against Seifert did not occur at Skateland.

The Commonwealth's Attorney then directed a detective to go to plaintiff's home and bring him to court. The detective told plaintiff that his photograph had been presented in court; that the Commonwealth's Attorney wanted him to appear at the proceedings; and that he could either appear voluntarily then or he would be summoned. Plaintiff agreed to go voluntarily. When [215 Va. 340] called as a witness, plaintiff testified as to the circumstances under [210 S.E.2d 147] which defendant had obtained his photograph. He also said that he had not molested any children and that he knew nothing about the charges against Seifert.

A police officer questioned plaintiff several times thereafter. Plaintiff was also summoned to appear as a witness before the grand jury but he was not called. However, he was summoned to appear several times at Seifert's trial in the circuit court because of continuances of the cases.

Plaintiff testified that he suffered great shock, distress and nervousness because of defendant's fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and turning it over to Seifert's attorney to be used in court. He suffered great anxiety as to what people would think of him and feared that he would be accused of molesting the boys. He had been unable to sleep while the matter was being investigated. While testifying in the instant case he became emotional and incoherent. Plaintiff's wife also testified that her husband experienced great shock and mental depression from the involvement.

The precise issue presented on this appeal has not been decided by this court.

In the recent case of Hughes v. Moore, 214 Va. 27, 31, 197 S.E.2d 214, 219 (1973), where we also clarified Bowles v. May, 159 Va. 419, 437--438, 166 S.E. 550, 557 (1932), we held that when conduct is merely negligent, not willful, wanton or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. However, where emotional disturbance is accompanied by physical injury there may be a recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party proves by clear and convincing evidence a causal connection between the negligent act, the emotional disturbance and the physical injury.

We have also said that a recovery is permitted for mental distress and physical injuries unaccompanied by actual physical contact where the injuries were caused by a willful, intentional tort. Moore v. Jefferson Hospital, Inc., 208 Va. 438, 441, 158 S.E.2d 124, 127 (1967).

The case of Awtrey v. Norfolk & W. Ry. Co., 121 Va. 284, 93 S.E. 570 (1917), relied upon by the defendant, is distinguishable on the facts from the present case. There, liability was based on [215 Va. 341] a negligent wrongful act; here, liability is based on willful, wanton, fraudulent and deceitful conduct.

Courts from other jurisdictions are not in accord on whether there can be a recovery for emotional distress unaccompanied by physical injury. However, most of the courts which have been presented with the question in recent years have held that there may be a recovery against one who by his extreme and outrageous conduct intentionally or recklessly causes another severe emotional distress.^[1] Annot., 64 A.L.R.2d 100, § 8 at 120, and the many cases there cited.

The Restatement (Second) of Torts, § 46 at 71, provides:

'(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.'

In comment (i) to the Restatement it is expressly stated that this rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct.

A great majority of cases allowing recovery for such a cause of action do so when the act was intentional and the wrongdoer desired the emotional distress or knew or should have known that it would likely result. Aetna Life Insurance Co. v. Burton, [210 S.E.2d 148] 104 Ind.App. 576, 580, 12 N.E.2d 360, 362 (1938); Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Boyle v. Chandler, Del.Super., 3 W.W.Harr 323, 33 Del. 323, 329, 138 A. 273, 276 (1927); Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344, 346--347 (1961); Prosser on Torts, 'Infliction of Mental Distress,' § 12 at 60 (4th ed. 1971).

In Samms, the Supreme Court of Utah aptly stated:

'. . . (T)he best considered view recognizes an action for severe emotional distress, though not accompanied by bodily impact or physical injury, where the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, Or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the [215 Va. 342] generally accepted standards of decency and morality.' (Footnote omitted; emphasis added.) 11 Utah 2d at 293, 358 P.2d at 346--347.

We adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer's conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.

'It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.' Restatement (Second) of Torts, Supra, at 77.

In the case at bar, reasonable men may disagree as to whether defendant's conduct was extreme and outrageous and whether plaintiff's emotional distress was severe. Thus, the questions presented were for a jury to determine. A jury could conclude from the evidence presented that defendant willfully, recklessly, intentionally and deceitfully obtained plaintiff's photograph for the purpose of permitting her employers to use it as a defense in a criminal case without considering the effect it would have on the plaintiff. There is nothing in the evidence that even suggests that plaintiff may have been involved in the child molesting cases. The record shows that the only possible excuse for involving the plaintiff was that Seifert was arrested at the place where plaintiff was employed. A reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases. If the two boys had hesitated in answering [215 Va. 343] that the man in the photograph was not the one who had molested them, it is evident that the finger of suspicion would have been pointed at the plaintiff.

Defendant contended in her brief, and in oral argument before us, that the trial court erred in granting instruction 1--A in that it was contradictory and misled the jury; that the amount of damages fixed by the jury was excessive; and that the action of the Commonwealth's Attorney in causing plaintiff's name to be revealed was an intervening cause which absolved her of any liability.

[210 S.E.2d 149] We will not consider those contentions because defendant did not assign cross-error. Beasley v. Barnes, 201 Va. 593, 598, 113 S.E.2d 62, 65 (1960); Blue Ridge Poultry and Egg Co., Inc. v. Clark, 211 Va. 139, 141, 176 S.E.2d 323, 325 (1970); Rule 5:7, Rules of Court.

For the reasons stated, the judgment of the court below is reversed, the jury verdict reinstated, and final judgment hereby entered for the plaintiff.

Judgment reversed, jury verdict reinstated, and final judgment.

[1]  Our research reveals that at least 26 jurisdictions permit such causes of action, while apparently 7 do not.

[466 N.E.2d 1309] 466 N.E.2d 1309

126 Ill.App.3d 46, 81 Ill.Dec. 507

No. 83-1656.

Appellate Court of Illinois,
First District, Fifth Division.

July 20, 1984.

[126 Ill.App.3d 47] John Panici, Chicago, for plaintiff-appellant.

Hubbard, Hubbard, O'Brien & Hall, Chicago, for defendant-appellee; Frederick W. Temple, John Skapars, Chicago, of counsel.

Plaintiff appeals from an order of the circuit court granting defendant corporation's motion for summary judgment. Plaintiff contends that the trial court erred in entering summary judgment against her because a genuine issue of material fact existed concerning her charge that she was [466 N.E.2d 1310] [81 Ill.Dec. 508] falsely detained and imprisoned. For the reasons which follow, we affirm the trial court's decision.

Count I of plaintiff's unverified two-count complaint alleged that plaintiff was employed as a clerk in defendant's donut shop in Woodridge, Illinois, for approximately three years; that on or about April 8, 1981, defendant, through its agents and employees, Ralph Bell and James Cesario, accused her of selling donuts without registering sales and thereby pocketing defendant's monies; and that she was falsely detained and imprisoned against her will in a room located on defendant's premises, with force, and without probable and reasonable cause, by defendant's employees. Count I of her complaint also alleged that as a result of defendant's employees' wilful and wanton false imprisonment, she was exposed to public disgrace; greatly injured in her good name and reputation; suffered, and still suffers, great mental anguish, humiliation and shock; wrongfully terminated from her employment; required to seek medical attention; all of which prevented her from attending to her usual affairs.

Defendant filed its answer on August 19, 1981, denying the material allegations of Count I of plaintiff's complaint. Further, on February 9, 1983, defendant amended its answer by filing an affirmative defense that alleged, inter alia, it was a merchant; that any questioning of plaintiff by its employees was performed only after said employees had reasonable grounds to believe that plaintiff had committed [126 Ill.App.3d 48] retail theft while working for defendant; that any alleged detention for questioning was limited solely to an inquiry as to whether plaintiff had failed to ring certain retail sales; and that such inquiry took place in a reasonable manner and for a reasonable length of time.

Defendant's motion for summary judgment on Count I of the complaint set forth the argument that plaintiff's complaint, sounding in false imprisonment and alleging that she was held against her will by her employers in a certain room of a Winchell's Donut House, was contradicted by her testimony in a discovery deposition. Defendant argued that plaintiff testified in this deposition that she had voluntarily complied with Messrs. Bell and Cesario's request to speak privately with her regarding the matter of shortages in her register on April 9, 1981. Defendant further argued that plaintiff testified that when she no longer wished to continue her conversation with her employers, she got up and went home, electing never to return to her job.

The motion included portions of plaintiff's deposition which disclosed the following. James Cesario telephoned plaintiff at her home at 4:30 p.m. on April 9, 1981, and asked her to come down to the donut shop; he did not explain his reasons for wanting her to do so. As a result of this call, plaintiff walked to the store from her home, arriving ten minutes later. Upon her arrival at the store, Cesario asked her to accompany him into the baking room, which was located at the rear of the store; Ralph Bell was also present in the room. After Cesario asked plaintiff to sit down, she indicated that they (Cesario and Bell) closed the door and locked it by putting a "little latch on." She stated that the two men told her that they had proof that spotters going from store to store had purchased two dozen donuts from her, but that her register had not shown the sale. After refusing her request to view the "proof," plaintiff stated that she was "too upset" to respond to their questioning regarding the length of time that her alleged "shorting" of the cash drawer had been going on.

She further stated that defendant's employees never told her that she had to answer their questions or face the loss of her job; never directly threatened to fire her; and made no threats of any kind to her during the interrogation. She further testified that she at no time during the interrogation feared for her safety; that she at no time refused to answer any question put to her; that there was never a point in the interrogation that she said, "I want to leave" and was prevented from doing so; and that she got up, left the [466 N.E.2d 1311] [81 Ill.Dec. 509] room and went home when she first decided to do so.

Plaintiff's written response to defendant's motion for summary [126 Ill.App.3d 49] judgment did not contradict the statements that she had made in her discovery deposition. In her affidavit filed in support of her response to defendant's motion for summary judgment, plaintiff averred that (1) she left the baking room after she began to shake, and when she felt that she was becoming ill; and (2) she was terminated from her employment by defendant.

The trial court entered summary judgment for defendant. Plaintiff appeals from that order. Count II of her complaint alleging defamation of character remains pending in the trial court.

It is well established that summary judgment determines whether any genuine issue of material fact exists and summarily disposes of cases where no such fact exists in order to avoid congestion of trial calendars and the expense of unnecessary trials. (Loveland v. City of Lewistown (1980), 84 Ill.App.3d 190, 192, 39 Ill.Dec. 700, 405 N.E.2d 453.) The motion should be granted where the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill.Rev.Stat.1981, ch. 110, par. 2-1005(c).) In addition, discovery depositions may be used in the context of summary judgment proceedings "for any purpose for which an affidavit may be used." See 87 Ill.2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill.2d 585, 588, 328 N.E.2d 559.

In ruling on a motion for summary judgment, the trial court must construe pleadings, depositions and affidavits included therein most strictly against the movant and most liberally in favor of the non-movant. (Blaylock v. Toledo, Peoria & Western R.R. (1976), 43 Ill.App.3d 35, 37, 1 Ill.Dec. 451, 356 N.E.2d 639.) The defendant may at any time move for summary judgment in his favor for all or any part of relief sought against him. (Kusiciel v. La Salle National Bank (1982), 106 Ill.App.3d 333, 338, 62 Ill.Dec. 245, 435 N.E.2d 1217.) However, because summary judgment is a drastic method of disposing of litigation, it should be granted only when the right of the movant is clear and free from doubt. Hillblom v. Ivancsits (1979), 76 Ill.App.3d 306, 310, 32 Ill.Dec. 172, 395 N.E.2d 119.

Plaintiff asserts that the trial court erred in granting defendant's motion for summary judgment as there exists a genuine issue of material fact. She posits that she felt compelled to remain in the baking room so that she could protect her reputation by protesting her innocence to the two men, and that she left the room once she began to shake and feel ill. Additionally, she attributes her "serious emotional upset" to her feelings of intimidation that she contends were caused [126 Ill.App.3d 50] by: James Cesario's sitting directly next to her during questioning, yellow pad and pencil in hand; Ralph Bell's repeated statement that his briefcase contained proof of her guilt; and his raised voice.

The common law tort of false imprisonment is defined as an unlawful restraint of an individual's personal liberty or freedom of locomotion. (Johnson v. Jackson (1963), 43 Ill.App.2d 251, 258, 193 N.E.2d 485; Shelton v. Barry (1946), 328 Ill.App. 497, 506, 66 N.E.2d 697.) Imprisonment has been defined as "any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go." (McKendree v. Christy (1961), 29 Ill.App.2d 195, 199, 172 N.E.2d 380.) In order for a false imprisonment to be present, there must be actual or legal intent to restrain. Campbell v. Kaczmarek (1976), 39 Ill.App.3d 465, 469, 350 N.E.2d 97.

Unlawful restraint may be effected by words alone, by acts alone or both (Hassenauer v. F.W. Woolworth Co. (1942), 314 Ill.App. 569, 41 N.E.2d 979 (abstract)); actual force is unnecessary to an action in false imprisonment. (Winans v. Congress Hotel Co. (1922), 227 Ill.App. 276, 282.) [466 N.E.2d 1312] [81 Ill.Dec. 510] The Restatement of Torts specifies ways in which an actor may bring about the confinement required as an element of false imprisonment, including (1) actual or apparent physical barriers; (2) overpowering physical force, or by submission to physical force; (3) threats of physical force; (4) other duress; and (5) asserted legal authority. Restatement (Second) of Torts §§ 38-41 (1965).

It is essential, however, that the confinement be against the plaintiff's will and if a person voluntarily consents to the confinement, there can be no false imprisonment. (Fort v. Smith (1980), 85 Ill.App.3d 479, 481, 40 Ill.Dec. 886, 407 N.E.2d 117.) "Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft, * * *, is not enough; nor, as in the case of assault, are threats for the future * * *. Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress." Prosser, Torts p 11, at 45 (4th ed. 1971).

Plaintiff principally relies on the court's decision in Marcus v. Liebman (1978), 59 Ill.App.3d 337, 16 Ill.Dec. 613, 375 N.E.2d 486, for support of her position that summary judgment should not have been granted in the instant case. In Marcus v. Liebman, the court extensively examined the concept that threats of a future action are not enough to constitute confinement. (59 Ill.App.3d 337, 341, 16 Ill.Dec. 613, 375 N.E.2d 486.) There, the defendant psychiatrist threatened to have plaintiff committed to the Elgin State Hospital, and the Marcus court found that this was a present threat, [126 Ill.App.3d 51] constituting false imprisonment, as opposed to a threat of future action. The court in Marcus concluded that the lower court had incorrectly directed a verdict for the defendant, and reversed and remanded the case for trial on the question of imprisonment. The court noted that plaintiff was already voluntarily committed to the psychiatric wing of a private hospital when the defendant made the threat to commit her to a state mental hospital and reasoned, "[A]t the time the alleged threat was made plaintiff was already confined. It was certainly reasonable for the plaintiff to believe that before her release [from the private hospital], commitment procedures could have been concluded." 59 Ill.App.3d 337, 341, 16 Ill.Dec. 613, 375 N.E.2d 486.

Our analysis of the Marcus decision, as well as the other cases cited by plaintiff, does not support plaintiff's position. All of these cases are easily distinguishable from the present case, as in each, either physical restraint or present threats of such were present.

In the case at bar, we are confronted with plaintiff's testimony, given under oath, that she voluntarily accompanied James Cesario to the baking room; that she stayed in the room in order to protect her reputation; that she was never threatened with the loss of her job; that she was never in fear of her safety; and that at no time was she prevented from exiting the baking room. Her affidavit, in which she averred that she left the baking room after she began to shake and when she felt that she was becoming ill, does not place into issue material facts which she had previously removed from contention. (Fountaine v. Hadlock (1971), 132 Ill.App.2d 343, 347, 270 N.E.2d 222.) In her discovery deposition, given under oath, she stated that she "got up and left" when Ralph Bell asked her how long the cash register "shorting" had been going on.

In the tort of false imprisonment, it is not enough for the plaintiff to have felt "compelled" to remain in the baking room in order to protect her reputation (see Prosser, Torts, § 11); for the evidence must establish a restraint against the plaintiff's will, as where she yields to force, to the threat of force or the assertion of authority. (See Restatement (Second) of Torts §§ 38-41 (1965).) In the present case, our search of the record reveals no evidence that plaintiff yielded to constraint of a threat, express or implied, or to physical force of any kind. Also, absent evidence that plaintiff accompanied Cesario against her will, we cannot say that she was imprisoned or unlawfully detained by defendant's [466 N.E.2d 1313] [81 Ill.Dec. 511] employees. Finally, we find no merit to plaintiff's argument that defendant's affirmative defense constituted an admission of an unlawful restraint.

[126 Ill.App.3d 52] For the reasons stated above, we conclude that the trial court properly granted defendant's motion for summary judgment, as there exists no question of material fact in the present case.

AFFIRMED.

MEJDA, P.J., and SULLIVAN, J., concur.

394 N.Y.S.2d 161

41 N.Y.2d 553, 362 N.E.2d 960

Court of Appeals of New York.

April 5, 1977.

[394 N.Y.S.2d 162] David M. Barnovitz, Kingston, for appellant.

Francis X. Tucker and Vernon Murphy, Kingston, for respondent.

This appeal brings up for review the dismissal, at the end of the plaintiff's case, of two causes of action, both of which arise out of the same somewhat unusual train of events. One is for false imprisonment and the other for negligence. The judgment of dismissal was affirmed by the Appellate Division by a vote of three to two. The issue before us, as to each count, is whether a prima facie case was made out. We believe it was.

Bearing in mind that, at the procedural point at which the case was decided, the plaintiff was entitled to the benefit of the most favorable inferences that were to be drawn from the record (Andersen v. Bee Line, 1 N.Y.2d 169, 172, l51 N.Y.S.2d 633, 634, 134 N.E.2d 457, 458; 10 Carmody-Wait 2d, N.Y. Prac., § 70:359, p. 627 et seq.), we turn at once to the proof. In doing so, for the present we rely in the main on testimony plaintiff adduced from the defendant's own employees, especially since plaintiff's own recollection of the events was less than satisfactory.

Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two poli officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi. According to the police, it was the Dugan brothers who alone were then engaged in a noisy quarrel. When the two uniformed officers informed the three they would have to move on or be locked up, Raymond Dugan ran away; Dixie Dugan chased after him unsuccessfully and then returned to the scene in a minute or two; Parvi, who the police testimony shows had been trying to calm the Dugans, remained where he was.

In the course of their examinations before trial, read into evidence by Parvi's counsel, the officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking" and showed "the effects of alcohol". They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure", transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out". This was the first time Parvi had ever been there. [394 N.Y.S.2d 163] En route they had asked to be left off at another place, but the police refused to do so.

No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway. There were no intervening fences or barriers other than the low Thruway guardrail intended to keep vehicular traffic on the road. Before they left, it is undisputed that the police made no effort to learn whether Parvi was oriented to his whereabouts, to instruct him as to the route back to Kingston, where Parvi had then lived for 12 years, or to ascertain where he would go from there. From where the men were dropped, the "humming and buzzing" of fast-traveling, holiday-bound automobile traffic was clearly audible from the Thruway; in their befuddled state, which later left Parvi with very little memory of the events, the men lost little time in responding to its siren song. For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured, Dugan was killed. (Parvi elected not to appeal from the dismissal of his cause of action against Darling, who originally had been joined as an additional defendant.)

With these facts before us, we initially direct our attention to Parvi's cause of action for false imprisonment. Only recently, we had occasion to set out the four elements of that tort in Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314, where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged".

Elements (1) and (3) present no problem here. When the plaintiff stated he had no place to go, he was faced with but one alternative arrest. This was hardly the stuff of which consent is formed, especially in light of the fact that Parvi was, in a degree to be measured by the jury, then under the influence of alcohol. It is also of no small moment in this regard that the men's request to be released at a place they designated was refused. Moreover, one of the policemen testified that his fellow officer alone selected the location to which Parvi was taken; indeed, this was a place to which the police had had prior occasion to bring others who were being "run out of town" because they evidenced signs of intoxication. Further, putting aside for the time being the question of whether such an arrest would have been privileged, it can hardly be contended that, in view of the direct and willful nature of their actions, there was no proof that the police officers intended to confine Parvi.

Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case (Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958; Robalina v. Armstrong, 15 Barb. 247; Herring v. Boyle, 1 Cr.M. & R. 377, 149 Eng. Rep. 1126; Meering v. Grahame White Aviation Co., 122 L & T 44; see Halpern, Intentional Torts and the Restatement, 7 Buffalo L.Rev. 7; Prosser, False Imprisonment: Consciousness of Confinement, 55 Col.L.Rev. 847), Broughton, supra, 37 N.Y.2d p. 456, 373 N.Y.S.2d p. 92, 335 N.E.2d p. 313 has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d ( § 42 too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

[394 N.Y.S.2d 164] However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff's sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi's responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met.

Passing on now to the fourth and final element, that of privilege or justification, preliminarily, and dispositively for the purpose of this appeal, it is to be noted that, since the alleged imprisonment here was without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification was on the city, whose failure to have done so precluded it from introducing such evidence under its general denial (Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 312, supra; Woodson v. New York City Housing Auth., 10 N.Y.2d 30, 217 N.Y.S.2d 31, 176 N.E.2d 57).

Since the city nevertheless contends that as a matter of law a privilege to arrest was established in this case and since, as already indicated, in our view of the case there will have to be a new trial, raising the possibility of an amendment of the pleadings, we deem it appropriate to comment. The city's argument runs that a police officer is not required to arrest for drunkenness but may exercise discretion to take an intoxicated person home or to some other safe place as the circumstances dictate and that that was done here.

In Sindle v. New York City Tr. Auth., 33 N.Y.2d 293, 352 N.Y.S.2d 183, 307 N.E.2d 245, we reflected on the scope of the privileges which constitute justification. We there said (p. 297), 352 N.Y.S.2d p. 186, 307 N.E.2d p. 248 "(G)enerally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful". Consequently, it may be that taking a person who is in a state of intoxication to a position of greater safety would constitute justification. But it is clearly not privileged to arrest such a person for the sole purpose of running him out of town, or, as further proof at the trial here established, once having arrested such a person, to follow a practice of running him out of town to avoid guardhouse chores for the police whenever there were no other prisoners in the local jail. Such acts cannot be sanctioned with the mantle of the privilege of justification. A person who has had too much to drink is not a chattel to be transported [394 N.Y.S.2d 165] from one locus to another at the whim or convenience of police officers.

The Restatement of Torts 2d ( § 10, Comment d) states it well: "Where the privilege is based upon the value attached to the interest to be protected or advanced by its exercise, the privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question. Such privileges are often called conditional, because the act is privileged only on condition that it is done for the purpose of protecting or advancing the particular interest. They are sometimes called 'defeasible', to indicate the fact that the privilege is destroyed if the act is done for any purpose other than the protection or advancement of the interest in question." It follows that, if the conduct of the officers indeed is found to have been motivated by the desire to run the plaintiff out of town, the action for false imprisonment would not have been rebutted by the defense of legal justification. For, under plaintiff's theory, the false imprisonment count does not rest on the reasonableness of the police officers' action, but on whether the unwilling confinement of the plaintiff was the result of an arrest for a nonjustified purpose.

The Appellate Division upheld the dismissal of the negligence cause on the ground that it was not reasonably foreseeable that a person who is under the influence of alcohol will walk approximately 350 feet in the dead of night and climb over a guardrail onto the New York Thruway. Before treating with that issue, we prefer to give our attention to the more fundamental question of the basic duty owed by the city to the plaintiff in this situation, a question somewhat obscured by the jargon of negligence terminology (Green, The Duty Problem in Negligence Cases, 28 Col.L.Rev. 1014, 29 Col.L.Rev. 255).

In that connection, we do not believe it aids our analysis of the negligence count to speculate on the duty of a police officer to arrest or not to arrest intoxicated persons. Instead, we confront directly the duty of police officers to persons under the influence of alcohol who are already in their custody, as was the case here once Parvi was compelled to enter the police car. The case law is clear that even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v. Nambil Realty Co., 245 N.Y. 256, 258, 157 N.E. 129, 130; Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276; Zelenko v. Gimbel Bros., 158 Misc. 904, 287 N.Y.S. 134, affd., 247 App.Div. 867, 287 N.Y.S. 136). As Restatement of Torts 2d ( § 324) puts it, "One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or (b) the actor's discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him".

Comment g to that section makes it evident that this duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued. So it tells us that "if the actor has succeeded in removing the other from a position of danger to one of safety, he cannot change his position for the worse by unreasonably putting him back into the same peril, or into a new one."

We return now to the question of whether it was reasonably foreseeable that Parvi, who appeared sufficiently intoxicated for the police to take action, when set down in the dead of night in a lonely rural setting within 350 feet of a superhighway, whose traffic noises were sure to make its presence known, might wander onto the road. To state the question is to answer it. To be sure, much has to depend on what the [394 N.Y.S.2d 166] jury finds to have been the state of his sobriety and the nature of the surrounding physical and other circumstances. But traditionally these are the kind of matters suitable for jury determination rather than for the direction of a verdict (Prosser, Torts (4th ed), § 45, p. 290; cf. Sheehan v. City of New York, 40 N.Y.2d 496, 502, 387 N.Y.S.2d 92, 95, 354 N.E.2d 832, 834).

Finally, a word of clarification may be in order as to the legal role of plaintiff's voluntary intoxication. To accept the defendant's argument, that the intoxication was itself the proximate cause of Parvi's injury as a matter of law, would be to negate the very duty imposed on the police officers when they took Parvi and Dugan into custody. It would be to march up the hill only to march down again. The clear duty imposed on the officers interdicts such a result if, as the jury may find, their conduct was unreasonable (Fagan v. Atlantic Coast Line R. R. Co., 220 N.Y. 301, 307, 115 N.E. 704, 707; Black v. New York, New Haven & Hartford R. R. Co., 193 Mass. 448, 79 N.E. 797; see Restatement, Torts 2d, § 324, Illustration 3). For it is the very fact of plaintiff's drunkenness which precipitated the duty once the officers made the decision to act.

Accordingly, the order of the Appellate Division should be reversed, both causes of action reinstated and a new trial ordered, with leave to the defendant, if so advised, to move at Trial Term for leave to amend its answer to affirmatively plead a defense of justification to the cause of action for false imprisonment.

I dissent. On no view of the facts should plaintiff, brought to causing his own serious injury by his voluntary intoxication, be allowed to recover from the City of Kingston for damages suffered when he wandered onto the New York State Thruway and was struck by an automobile. His attack is the familiar one on the good Samaritan, in the persons of two police officers, for not having, in retrospect, done enough.

The order of the Appellate Division should be affirmed, and the action stand dismissed.

On the night in question, the Kingston city police, responding to a complaint, found plaintiff Parvi and his companions in the midst of an uproarious argument behind a commercial establishment located on Broadway, in Kingston. Close by were railroad tracks, still in use by locomotives and freight trains. Plaintiff and his companion Dugan, both intoxicated, were asked if they had any place to go, and they said not. They were then taken to the police car, and informed that they would not be placed in jail on this holiday weekend, but, in accordance with their wishes, would instead be transported to a point out of the area where they could "sleep it off" without getting into further trouble. Dugan and Parvi repeatedly expressed their appreciation and gratitude at the option given them.

As the drive out of town proceeded, one of the men suggested a place where they might be left. The police officers, however, solicitous of the safety of their charges, declined this request, noting that the area suggested provided no shelter and, significantly, that the Thruway was "right there". As an alternative, the officers, with the consent of plaintiff and Dugan, dropped the men off at "Coleman Hill", the site of a former golf course, a spot often used by campers and equipped with several "lean-to" shelters. From the relative safety of this sheltered area, the two men, some time later, managed to wander onto the Thruway, over 350 feet away, where Dugan was killed and Parvi injured by passing automobiles.

On these facts, Parvi contends both that he was falsely imprisoned and that the city, through its police officers, was negligent. Neither claim withstands analysis, and both should fall.

In Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 92, 335 [394 N.Y.S.2d 167] N.E.2d 310, 313, cert. den., 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257, this court enumerated the elements necessary to sustain a false imprisonment claim: (1) intention to confine, (2) consciousness of confinement, (3) lack of consent to confinement, and (4) lack of privilege. But before those factors may even be reached, there must be evidence of a confinement. In this case, there was none, but, instead, merely an exclusion from one particular area and activity (see Restatemen Torts 2d, § 36, esp Comment b ; Prosser, Torts (4th ed), p. 42).

So long as Parvi did not remain out in public, intoxicated, creating a public nuisance, and endangering his own life, the officers had no wish to interfere with Parvi's freedom of movement. Since Parvi could suggest no suitable place where the officers might take him, the officers chose another site. Apparently, Parvi and Dugan were pleased with the choice. And it should not matter that Parvi testified, although he could recall nothing else, that he was ordered into a police car "against (his) will". (On cross-examination, he said he recalled nothing that day.) Parvi's "will" was to stay where he was, intoxicated, in public. In order to deprive him of that one choice, which the officers could do without subjecting themselves to liability for false imprisonment, the officers had to transport Parvi some place else. He was given a choice as to destination. He declined it, except for his later suggestion of an unsafe place, and the officers made the choice for him. There was no confinement, and hence no false imprisonment.

Moreover, plaintiff has failed even to make out a prima facie case that he was conscious of his purported confinement, and that he failed to consent to it. His memory of the entire incident had disappeared; at trial, Parvi admitted that he no longer had any independent recollection of what happened on the day of his accident, and that as to the circumstances surrounding his entrance into the police car, he only knew what had been suggested to him by subsequent conversations. In light of this testimony, Parvi's conclusory statement that he was ordered into the car against his will is insufficient, as a matter of law, to establish a prima facie case.

Plaintiff's negligence claim is equally without merit. The police officers had no duty to leave Parvi absolutely free from danger in any form. Instead, they owed plaintiff only a duty to exercise ordinary care (Dunham v. Village of Canisteo, 303 N.Y. 498, 502, 104 N.E.2d 872, 874). That duty was discharged by leaving plaintiff at a camping ground equipped with "lean-to" shelters and removed from the holiday bustle of the city, where Parvi had been drinking for the past two or three days. Since it was not foreseeable that Parvi, rather than "sleeping off" his intoxication, would wander away, climb over a guardrail, and be struck by an automobile on the New York State Thruway, there was no breach of duty, no negligence, and hence, no liability (see Cartee v. Saks Fifth Ave., 277 App.Div. 606, 60 101 N.Y.S.2d 761, 764-765, affd., 303 N.Y. 832, 104 N.E.2d 375). If, perchance, he was in search of more drinks, there was no chance of giving him absolute safety except by locking him up. It should not be the rule, common to an era long well past, that every drunkard must be locked up on being observed as intoxicated in public.

In removing Parvi and Dugan from the center of town, the police officers were performing a recognized public function. In his intoxicated state, Parvi, with his companions, was creating a public nuisance. It had been a long-standing practice in Kingston to transport publicly intoxicated people out of the center of town. The practice was followed in this case, and it is not, in a smaller city (population 25,544), an inherently unreasonable way of dealing with public intoxication. It avoids the humiliation and degradation to the offender, of maintaining him in jail. It is a commonplace that it is no longer acceptable, albeit it still continues, to treat the intoxicated and alcoholic in this fashion, as one does criminals.

[394 N.Y.S.2d 168] Moreover, transplanting plaintiff from the center of town to an isolated area on the outskirts was protective of plaintiff himself. While a man in an intoxicated state can always be a hazard to himself, he is much more so when located in the center of town, in the midst of city streets, railroad tracks, molesters, muggers, street vehicles, and without shelter, than he would be in an isolated area. But one may not deprive him of reasonable access, after he recovers his sobriety, to food and other necessities. Had the police placed the two men out of reasonable access to any road, the isolation would have been inhumane. And any road would under some circumstances be dangerous. At least, the Thruway was bordered by a guardrail, and the record does not indicate the distance to the other accessible roads, including the road by which they reached Coleman Hill.

Restatement, Torts 2d, defines an act as negligent when it involves a risk of harm "of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done" ( § 291). Here, the risk was slight; the police officers obviously considered safety in choosing the camping site to deposit the two men, and reasonably regarded the site as safe. More significant, by removing Parvi from town, they removed him from a place of greater danger, and halted a public nuisance as well. The police conduct, therefore, was not unreasonable under the Restatement test. (See, also, Restatement, Torts 2d, §§ 292, 293.) The same analysis applies under section 324 of Restatement, Torts 2d, dealing with the duty of one who takes charge of helpless persons, since the officers materially improved plaintiff's position by removing him from town.

Since, therefore, there was no breach of duty to plaintiff, as a matter of law, the negligence count, too, was properly dismissed.

There is hubris in the bringing of an action of this kind. Parvi is one of a pair of drinkers, derelicts perhaps, engaged in making a public nuisance of themselves in the center of a small Hudson River Valley city on a holiday weekend. The police of that city, a tiny force, are not sisters of charity or baby-sitters.

Basically, the legal issues in this case are not difficult. And the justice issues are even less so. A drunken man, a pitiable character, is found with his companions in the middle of town. Sympathetic police officers offer to take the men any where they choose, but the poor fellows have no place to go. So, rather than locking them up for a holiday weekend, the officers deposit the men in a suburban setting, where some shelter is available. The officers are thanked for their kindness. But, in the end, the efforts of the officers are to no avail, as the drunken men wander away from safety and into danger. A tragedy, certainly. A miscalculation, perhaps. But even with the aid of hindsight, the facts in this case are not the stuff on which tort liability may be premised.

Accordingly, I dissent, and vote to affirm the order of the Appellate Division.

GABRIELLI, JONES, WACHTLER and COOKE, JJ., concur with FUCHSBERG, J.

BREITEL, C. J., dissents and votes to affirm in a separate opinion in which JASEN, J., concurs.

Order reversed, with costs to abide the event, both causes of action reinstated and a new trial granted, with leave to respondent to move at Trial Term to amend its answer.

299 N.W.2d 123 (1980)

No. 48721.

Supreme Court of Minnesota.

October 24, 1980.

[299 NW 2d 125] Ranum, Quackenbush & Burke and James H. Ranum, Minneapolis, for appellant.

Gray, Plant, Mooty, Mooty & Bennett and Jeffrey R. Brooke, Minneapolis, for Sorlien.

Joseph W. Parris, Hector, for Jungclaus et al.

Wasserman & Lewis and Mark S. Wasserman, Minneapolis, for Perkins.

Heard before SHERAN, C. J., and OTIS, PETERSON, KELLY, TODD, YETKA and MAXWELL, JJ., and considered and decided by the court en banc.

This action by plaintiff Susan Jungclaus Peterson for false imprisonment and intentional infliction of emotional distress arises from an effort by her parents, in conjunction with other individuals named as defendants, to prompt her disaffiliation from an organization known as The Way Ministry.

At trial, the Hennepin County District Court directed a verdict in favor of defendant Paul Sorlien, plaintiff's former minister, finding the evidence proffered against [299 NW 2d 126] him insufficient as a matter of law. The jury returned a verdict exonerating Mr. and Mrs. Jungclaus and the other remaining defendants of the charge of false imprisonment; however, the jury found defendants Veronica Morgel and Kathy Mills liable for intentional infliction of emotional distress, assessing against each of them $1 compensatory damages and $4,000 and $6,000 respectively as punitive damages.

Plaintiff asserts that the trial court erred by 1) failing to grant a judgment notwithstanding the verdict on the claim of false imprisonment; 2) permitting the admission of evidence concerning her involvement in The Way and its activities; 3) instructing the jury that in assessing plaintiff's credibility it could consider whether others than plaintiff were participating in the expense of the litigation; 4) directing a verdict in favor of Paul Sorlien; and 5) denying her motion to amend the complaint to substitute the proper names of defendants previously identified as John Doe, James Roe, Jane Doe and Mary Roe and to add a new cause of action.

We find that if the trial court erred in its jury instruction which outlined the factors that could be considered in assessing plaintiff's credibility and by failing to permit the substitution of proper names for defendants otherwise identified in the complaint, these errors were not of a fundamental magnitude. In all other respects, we affirm the determination of the district court.

Viewing the evidence in the light most favorable to the prevailing defendants, this case marks the emergence of a new cultural phenomenon: youth-oriented religious or psuedo-religious groups which utilize the techniques of what has been termed "coercive persuasion" or "mind control" to cultivate an uncritical and devoted following. Commentators have used the term "coercive persuasion," originally coined to identify the experience of American prisoners of war during the Korean conflict to describe the cult-induction process. The word "cult" is not used pejoratively but in its dictionary sense to describe an unorthodox system of belief characterized by "great or excessive devotion or dedication to some person, idea, or thing." Webster's New International Dictionary of the English Language Unabridged 552 (1976). Coercive persuasion is fostered through the creation of a controlled environment that heightens the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The aftermath of indoctrination is a severe impairment of autonomy and the ability to think independently, which induces a subject's unyielding compliance and the rupture of past connections, affiliations and associations. See generally Delgado, Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment, 51 S.Cal.L.Rev. 1 (1977). One psychologist characterized the process of cult indoctrination as "psychological kidnapping." Id. at 23.

At the time of the events in question, Susan Jungclaus Peterson was 21 years old. For most of her life, she lived with her family on a farm near Bird Island, Minnesota. In 1973, she graduated with honors from high school, ranking second in her class. She matriculated that fall at Moorhead State College. A dean's list student during her first year, her academic performance declined and her interests narrowed after she joined the local chapter of a group organized internationally and identified locally as The Way of Minnesota, Inc.

The operation of The Way is predicated on the fund-raising activities of its members. The Way's fund-raising strategy centers upon the sale of pre-recorded learning programs. Members are instructed to elicit the interest of a group of ten or twelve people and then play for them, at a charge of $85 per participant, a taped introductory course produced by The Way International. Advanced tape courses are then offered to the participants at additional cost, and training sessions are conducted to more fully acquaint recruits with the orientation of the group and the obligations of membership. Recruits must contribute a minimum of 10 percent of their earnings to the organization; [299 NW 2d 127] to meet the tithe, student members are expected to obtain part-time employment. Members are also required to purchase books and other materials published by the ministry, and are encouraged to make larger financial contributions and to engage in more sustained efforts at solicitation.

By the end of her freshman year, Susan was devoting many hours to The Way, listening to instructional tapes, soliciting new members and assisting in training sessions. As her sophomore year began, Susan committed herself significantly, selling the car her father had given her and working part-time as a waitress to finance her contributions to The Way. Susan spent the following summer in South Dakota, living in conditions described as appalling and overcrowded, while recruiting, raising money and conducting training sessions for The Way.

As her junior year in college drew to a close, the Jungclauses grew increasingly alarmed by the personality changes they witnessed in their daughter; overly tired, unusually pale, distraught and irritable, she exhibited an increasing alienation from family, diminished interest in education and decline in academic performance. The Jungclauses, versed in the literature of youth cults and based on conversations with former members of The Way, concluded that through a calculated process of manipulation and exploitation Susan had been reduced to a condition of psychological bondage.

On May 24, 1976, defendant Norman Jungclaus, father of plaintiff, arrived at Moorhead to pick up Susan following the end of the third college quarter. Instead of returning to their family home, defendant drove with Susan to Minneapolis to the home of Veronica Morgel. Entering the home of Mrs. Morgel, Susan was greeted by Kathy Mills and several young people who wished to discuss Susan's involvement in the ministry. Each of those present had been in some way touched by the cult phenomenon. Kathy Mills, the leader of the group, had treated a number of former cult members, including Veronica Morgel's son. It was Kathy Mills a self-styled professional deprogrammer, to whom the Jungclauses turned, and intermittently for the next sixteen days, it was in the home of Veronica Morgel that Susan stayed.

The avowed purpose of deprogramming is to break the hold of the cult over the individual through reason and confrontation. Initially, Susan was unwilling to discuss her involvement; she lay curled in a fetal position, in the downstairs bedroom where she first stayed, plugging her ears and crying while her father pleaded with her to listen to what was being said. This behavior persisted for two days during which she intermittently engaged in conversation, at one point screaming hysterically and flailing at her father. But by Wednesday Susan's demeanor had changed completely; she was friendly and vivacious and that night slept in an upstairs bedroom. Susan spent all day Thursday reading and conversing with her father and on Saturday night went roller-skating. On Sunday she played softball at a nearby park, afterwards enjoying a picnic lunch. The next week Susan spent in Columbus, Ohio, flying there with a former cult member who had shared with her the experiences of the previous week. While in Columbus, she spoke every day by telephone to her fiance who, playing tapes and songs from the ministry's headquarters in Minneapolis, begged that she return to the fold. Susan expressed the desire to extricate her fiance from the dominion of the cult.

Susan returned to Minneapolis on June 9. Unable to arrange a controlled meeting so that Susan could see her fiance outside the presence of other members of the ministry, her parents asked that she sign an agreement releasing them from liability for their past weeks' actions. Refusing to do so, Susan stepped outside the Morgel residence with the puppy she had purchased in Ohio, motioned to a passing police car and shortly thereafter was reunited with her fiance in the Minneapolis headquarters of The Way. Following her return to the ministry, she was directed to counsel and initiated the present action.

[299 NW 2d 128] 1. Plaintiff seeks a judgment notwithstanding the verdict on the issue of false imprisonment, alleging that defendants unlawfully interfered with her personal liberty by words or acts which induced a reasonable apprehension that force would be used against her if she did not otherwise comply. Durgin v. Cohen, 168 Minn. 77, 209 N.W. 532 (1926). The jury, instructed that an informed and reasoned consent is a defense to an allegation of false imprisonment and that a nonconsensual detention could be deemed consensual if one's behavior so indicated, exonerated defendants with respect to the false imprisonment claim.

The period in question began on Monday, May 24, 1976, and ceased on Wednesday, June 9, 1976, a period of 16 days. The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of those days. During that time she took many excursions into the public sphere, playing softball and picnicking in a city park, roller-skating at a public rink, flying aboard public aircraft and shopping and swimming while relaxing in Ohio. Had Susan desired, manifold opportunities existed for her to alert the authorities of her allegedly unlawful detention; in Minneapolis, two police officers observed at close range the softball game in which she engaged; en route to Ohio, she passed through the security areas of the Twin Cities and Columbus airports in the presence of security guards and uniformed police; in Columbus she transacted business at a bank, went for walks in solitude and was interviewed by an F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did she complain of her treatment or suggest that defendants were holding her against her will. If one is aware of a reasonable means of escape that does not present a danger of bodily or material harm, a restriction is not total and complete and does not constitute unlawful imprisonment. Damages may not be assessed for any period of detention to which one freely consents. See Davis & Allcott Co. v. Boozer,215 Ala. 116, 110 So. 28 (1926); Restatement (Second) of Torts § 36, Comment a (1965); 4 Minnesota Practice JIG II, 504 G-S (2d ed.1974).

In his summation to the jury, the trial judge instructed that to deem consent a defense to the charge of false imprisonment for the entire period or for any part therein, a preponderance of the evidence must demonstrate that such plaintiff voluntarily consented. The central issue for the jury, then, was whether Susan voluntarily participated in the activities of the first three days. The jury concluded that her behavior constituted a waiver.

We believe the determination to have been consistent with the evidence. See Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.1979); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); F. Harper & F. James, The Law of Torts § 3.10, at 235 (1956). Were the relationship other than that of parent and child, the consent would have less significance.

To determine whether the findings of the jury can be supported upon review, the behavior Susan manifested during the initial three days at issue must be considered in light of her actions in the remainder of the period. Because, it is argued, the cult conditioning process induces dramatic and non-consensual change giving rise to a new temporary identity on the part of the individuals whose consent is under examination, Susan's volitional capacity prior to treatment may well have been impaired. Following her readjustment, the evidence suggests that Susan was a different person, "like her old self." As such, the question of Susan's consent becomes a function of time. We therefore deem Susan's subsequent affirmation of defendants' actions dispositive.

In Weiss v. Patrick, 453 F.Supp. 717 (D.R. I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), the federal district court in Rhode Island confronted a situation similar to that which faces us. Plaintiff, a devotee of the Unification Church, brought an action for false imprisonment against individuals hired by her parents to prompt her disassociation from the church. Because [299 NW 2d 129] plaintiff's mother was dying of cancer, the church authorities permitted her to join her family for the Thanksgiving holiday. Met at the airport by her mother, she testified that she was restrained against her will in the home of one of the defendants and subjected to vituperative attacks against the church until she seized an opportunity to flee. Despite the evidently traumatic experience sustained by plaintiff, the district court found that she failed to demonstrate a meaningful deprivation of personal liberty, reasoning that "any limitation upon personal mobility was not her primary concern." Id. at 722. In so reasoning, the court underscored a parental right to advocate freely a point of view to one's child, "be she minor or adult." To assure freedom, the court observed, "the right of every person `to be left alone' must be placed in the scales with the right of others to communicate." Id. (quoting Rowan v. United States Post Office Department, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).

In light of our examination of the record and rules of construction providing that upon review the evidence must be viewed in a manner most favorable to the prevailing party, Kuehl v. National Tea Co., 310 Minn. 48, 245 N.W.2d 235 (1976), we find that a reasonable basis existed for the verdict exonerating defendants of the charge of false imprisonment. Although carried out under colorably religious auspices, the method of cult indoctrination, viewed in a light most favorable to the prevailing party, is predicated on a strategy of coercive persuasion that undermines the capacity for informed consent. While we acknowledge that other social institutions may utilize a degree of coercion in promoting their objectives, none do so to the same extent or intend the same consequences. Society, therefore, has a compelling interest favoring intervention. The facts in this case support the conclusion that plaintiff only regained her volitional capacity to consent after engaging in the first three days of the deprogramming process. As such, we hold that when parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or psuedo-religious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.^[1] But owing to the threat that deprogramming poses to public order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the First Amendment requires resort to the least restrictive alternative so as to not impinge upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1940).^[2]

2. On appeal, plaintiff challenges the propriety of admissions by the trial court of evidence regarding her involvement in the activities of The Way. By charging defendants with intentional infliction of emotional distress and seeking punitive damages, plaintiff placed the state of mind of defendants at issue. For a court to award punitive damages, a plaintiff must prove that defendants acted willfully, wantonly and maliciously. Good faith is a proper defense to punitive damages, even though defendants might have been mistaken in their belief that a party was in jeopardy or that their actions were correct. Benson [299 NW 2d 130] Cooperative Creamery Association v. First District Association, 276 Minn. 520, 151 N.W.2d 422 (1967). Therefore, in determining whether defendants acted with the requisite degree of malice, the trial court considered defendants' perceptions of The Way Ministry and their fears for Susan's well-being relevant and admissible.

The ability of defendants to introduce testimony of their perception of the ministry's effect upon plaintiff must be weighed against the First Amendment admonition respecting the free exercise of religion. Although religious belief is protected absolutely from governmental regulation, religiously motivated conduct is subject to a balancing test that weighs the interest of the religious group against the state's interest in regulating or forbidding the activity. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A court may also afford the interest of the religious group less weight if it considers the belief giving rise to the conduct insincerely held, or if the practice is not central to the group's system of belief. Id.

At trial, defendants did not act as inquisitors, seeking to admit testimony regarding plaintiff's religious beliefs, but merely tried to show that their fears for Susan's physical and emotional well-being were well-grounded. To assess defendants' state of mind, the trial court admitted evidence purporting to illustrate defendants' fear that The Way's method of recruitment resembled a process of programmed manipulation devised to allay the suspicions and anesthetize the rational processes of its targets. Publication by The Way of a guide on "The ‘How’ of Door to Door Witnessing," instructing recruiters to focus on "the hungry" and on "individuals whose resistance is temporarily lowered because of loneliness, worry over exams, or other adolescent crises," suggests that a reasonable basis for defendants' fears did indeed exist. The court therefore permitted references to Susan's psychological and physical condition, the extent and manner of her participation in the program of the cult, the demands of membership, and her living conditions during the summer that she "witnessed" for the cult.

The admission of evidence for the purpose of showing good faith may have the unintended effect of prejudicing a jury by bringing out facts regarding religious belief. Aware of the potential impact of such testimony, the trial judge instructed the jury on no fewer than six occasions as to the purpose of the evidence and the context in which it could be considered and upheld objections to testimony bearing on religious belief. Since an award of punitive damages rests with the discretion of the jury, Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818 (1912), to have excluded all evidence bearing a potentially prejudicial impact would have eviscerated defendants' right to defend against the charge of intentional infliction of emotional distress. We therefore find that in an action for intentional infliction of emotional distress, when the record discloses no testimony impinging upon religious belief, the introduction by defendants of relevant evidence concerning matters that plaintiff voluntarily placed in issue, such as her religious association and defendants' state of mind, was admissible and did not violate the First Amendment admonition respecting freedom of religion.

3. Plaintiff next challenges a charge to the jury by the trial judge instructing that when assessing plaintiff's credibility, the jury could properly take into account whether The Way was maintaining or financing the law suit. Plaintiff argues that the instruction, culminating after a lengthy trial involving several causes of action, extensive discovery proceedings, a plethora of motions and a number of hearings, constituted reversible error.

In the past, this court has observed that a trial court's charge to the jury must be reviewed in its entirety, interpreting the instructions as a whole and refraining from considering isolated statements without reference to context. Thomas v. Mueller, 251 Minn. 470, 88 N.W.2d 842 (1958); Lund v. Minneapolis Street Ry., 250 Minn. 550, 86 [299 NW 2d 131] N.W.2d 78 (1957). At trial, reference was made to whether plaintiff was the real party in interest or merely a conduit through which other parties were maintaining the action. As a matter of law, the court ruled that defense inadmissible, subsequently instructing that such facts could only be considered in determining plaintiff's credibility and ascertaining appropriate damages. In otherwise instructing the jury, the trial court clearly and accurately described the torts of false imprisonment and intentional infliction of emotional distress and ruled as a matter of law that certain defenses asserted by defendants were inapplicable. The trial court also informed the jury that evidence implicating The Way could only be considered in the limited context of establishing whether defendants acted wantonly, willfully or maliciously; that inquiry, in turn, related only to the assessment of punitive damages and not to the ultimate questions of liability.

In general we believe it unwise to sanction a jury instruction providing that when a group supports a plaintiff or derives a benefit therefrom, evidence of such support can be introduced at trial relative to the question of damages. The ultimate effect of such a ruling might deter litigants from accepting the assistance of unpopular groups fearing that this evidence could affect the disposition of a case. In NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 405 (1963), the United States Supreme Court held such relationships to be modes of expression and association protected under the First Amendment. Button concerned the NAACP's practice of advising individuals during informational meetings of its willingness to commence civil rights litigation on their behalf. Challenged under a statute forbidding solicitation of legal business by an organization that retains a lawyer in connection with an action to which it is neither a party nor has a pecuniary right or liability, the United States Supreme Court found the statute unconstitutional.

The purpose of a jury instruction is to convey a clear and correct understanding of the law of the case as it relates to all the parties involved. A charge that is substantially correct is sufficient when an error has not been given such undue prominence as to obscure issues of primary significance. St. George v. Lollis, 209 Minn. 322, 296 N.W. 523 (1941); SeeGibbon Farmers Elevator Co. v. Herschmann, 160 Minn. 326, 200 N.W. 293 (1924). Therefore, although we find that the trial court may have erred in instructing that the jury could consider evidence of the cult's financial support in assessing plaintiff's credibility, because the instruction constituted a small part of an otherwise commendable exposition and did not affect the ultimate disposition of the case as evidenced by the award of $10,000 in punitive damages, we hold that the commission of the error, if any, does not merit reversal.

4. Plaintiff further challenges the decision of the trial court, charging that the court erred by directing a verdict in favor of the plaintiff's former minister, Paul Sorlien. In so doing, plaintiff attributes to Paul Sorlien a degree of participation in the events in question that bears no relation to the actual facts of the case.

The active involvement of Paul Sorlien began when he accompanied his parishioner, Norman Jungclaus, to Moorhead, Minnesota to pick Susan up at the close of her examinations and then drove them to Minneapolis to the home of Veronica Morgel. Sorlien had become concerned about Susan following conversations with her parents and was previously acquainted with Morgel by reason of an informational seminar that they both attended on the subject of religious cults. The trio arrived at the Morgel residence at approximately 7 p. m. at which time Sorlien was called away to assist a parishioner who had been transferred unexpectedly to a Minneapolis hospital. Sorlien returned at approximately 11 p. m. and consequently was unaware of the circumstances surrounding Susan's removal to the downstairs bedroom. Susan became hysterical when he walked downstairs to greet her, and he therefore immediately left the room. The next day Sorlien again entered the room and observed Susan curled up in a [299 NW 2d 132] fetal position with her fingers in her ears. Upon seeing him, Susan once again became hysterical. Sorlien attributed her hysterical reactions to her indoctrination by The Way that ministers are "adversary, part of the devil." Sorlien spent the remainder of the day visiting three parishioners in three different metropolitan hospitals. On Wednesday, Sorlien was present but not party to a conversation between Susan and another individual but later that afternoon Sorlien exchanged pleasantries with Susan and noticed that her appearance and demeanor were markedly different. On Thursday, he returned to Bird Island to make funeral arrangements for a parishioner and to teach a confirmation class. He had no other significant contacts or conversations with the Jungclauses or Susan following his departure.

Under the applicable standard recently reiterated in J. N. Sullivan & Associates, Inc. v. F. D. Chapman Construction Co., 304 Minn. 334, 231 N.W.2d 87 (1975), we find the evidence against Paul Sorlien insufficient to present a question of fact for the jury to decide, and accordingly, uphold the directed verdict of the trial court.^[3]

5. As a final matter, plaintiff appeals the denial by the trial court of her motion to amend the complaint for the purpose of substituting the proper names of those previously identified in the complaint as John Doe, James Roe, Jane Doe and Mary Roe. Also included in the above motion was the further request to include an additional cause of action for civil conspiracy under 42 U.S.C. § 1985 (1976).^[4]

Minn.R.Civ.P. 9.08 provides that when a litigant in his pleadings alleges ignorance as to the name of an opposing party, the opposing party may be designated by any name; after discovery of the true name, the pleadings may be amended accordingly. By identifying the parties in such manner, defendants are on notice that the complaint will be amended. Because of the perfunctory nature of the rule, we conclude that the trial court erred by failing to permit the substitution. See LaSalle Cartage Co. v. Johnson Brothers Wholesale Liquor Co., 302 Minn. 351, 225 N.W.2d 233 (1974). In respect to that part of the motion seeking the addition of a new federal cause of action, however, we find the trial court did not err. The addition of a new cause of action almost a year after commencement of the suit would have likely delayed the start of trial or prejudiced the adverse party. Leave to amend will only be granted when justice so requires. Minn.R. Civ.P. 15.01.

Neither in her brief nor in her notice of appeal does plaintiff indicate what relief she seeks as a result of this error. Because plaintiff only sought punitive damages of $10,000, for which she had already been compensated, the substitution of the remaining defendants would only have resulted in a symbolic award. Hence, under Minnesota's harmless error rule, the refusal of the trial court to take such action did not appear to affect the substantial rights of the parties. Minn.R.Civ.P. 61. We therefore hold that the failure of the trial court to permit the substitution of the true and correct name of a party joined in a complaint [299 NW 2d 133] by a fictitious name does not constitute reversible error when doing so would have resulted only in a symbolic award.

Affirmed.

I concur in the result.

AMDAHL and SIMONETT, JJ., not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

I must respectfully dissent. In every generation, parents have viewed their children's religious and political beliefs with alarm and dismay if those beliefs were different from their own. Under the First Amendment, however, adults in our society enjoy freedoms of association and belief. In my view, it is unwise to tamper with those freedoms and with longstanding principles of tort law out of sympathy for parents seeking to help their "misguided" offspring, however well-intentioned and loving their acts may be. Whether or not, as the majority opinion asserts, The Way of Minnesota, Inc. is a "youth-oriented," "pseudo-religious group" which pursues its "fundraising strategy" in such a way as to inflict physical and psychological harm on its members, emphasis on this characterization beclouds the purely legal issues which are presented by this appeal.

The first of those legal issues is whether, as a matter of law, any of the defendants in this case are guilty of false imprisonment of the plaintiff. The elements of the tort of false imprisonment are (1) words or acts by defendant intended to confine plaintiff, (2) actual confinement, and (3) awareness by plaintiff that she is being confined. Blaz v. Molin Concrete Products Co., 309 Minn. 382, 244 N.W.2d 277 (1976). Any imprisonment "which is not legally justifiable" is false imprisonment, Kleidon v. Glascock, 215 Minn. 417, 10 N.W.2d 394 (1943); therefore, the fact that the tortfeasor acted in good faith is no defense to a charge of false imprisonment. Accord, Strong v. City of Milwaukee, 38 Wis.2d 564, 157 N.W.2d 619 (1968). Thus, although the majority opinion correctly concludes that evidence concerning the activities of The Way and the impact of those activities upon plaintiff may have been relevant to the question of whether defendants acted so willfully and maliciously as to justify an award of punitive damages, such evidence has little bearing on the issue of defendants' liability for false imprisonment.

The unrebutted evidence shows that defendant Norman Jungclaus, the father of the 21-year-old plaintiff in this case, took his adult daughter, kicking and screaming, to a small bedroom in the basement of the Morgel home on Monday, May 23. Norman Jungclaus admitted that she did not go with him willingly. Plaintiff curled up on the bed, plugged her ears, and cried. Defendant Perkins testified that plaintiff screamed and cried and pleaded with several people to let her go, but her pleas were ignored. This situation continued until 3 a. m. Tuesday. At one point that morning, plaintiff flew at her father, and he held her arms around her from the back, in his words, "for maybe a half an hour, until she calmed down again." Plaintiff testified that defendant Mills told her papers had been drafted to commit her to Anoka State Hospital if she continued to refuse to cooperate with the "deprogramming."

In its memorandum accompanying the order denying plaintiff's motion for judgment notwithstanding the verdict, the trial court stated:

It should be noted that there must be considerable room for doubt concerning that portion of the verdict finding that Norman Jungclaus did not participate in a false imprisonment. The evidence is unrebutted that he picked up his 21-year-old daughter Susan and took her into the basement without her permission or consent, and against her will. She remained there several days. However, Plaintiff stated that she was not seeking [299 NW 2d 134] compensatory damages against her parents, and only $1.00 in punitive damages.

In that light, judgment notwithstanding verdict as to false imprisonment would be of no significance in the matter of compensatory damages. And whether or not Mr. Jungclaus's act was done maliciously or willfully so as to justify $1.00 punitive damages is clearly a matter for determination by the jury; and not the Court. Hence, judgment notwithstanding verdict against Norman Jungclaus as to false imprisonment must be denied. On practical grounds, a new trial will not be ordered for a potential $1.00 recovery in any event.

Thus, the trial court refused to grant judgment against Norman Jungclaus because any damages awarded would be insignificant. However, plaintiff's complaint sought not only money damages but an injunction against further interference with her freedoms of religion, association, and expression. The value to plaintiff of a judgment in her favor, while not monetary, is nevertheless significant.

The majority opinion finds, in plaintiff's behavior during the remainder of the 16-day period of "deprogramming," a reasonable basis for acquitting defendant Jungclaus of the false imprisonment charge for the initial three days, during which time he admittedly held plaintiff against her will. Under this theory, plaintiff's "acquiescence" in the later stages of deprogramming operates as consent which "relates back" to the events of the earlier three days, and constitutes a "waiver" of her claims for those days. Cases cited by the majority do not lend support to this proposition. Bustamonte addressed the meaning of "voluntary consent" to the search of an automobile by police in the context of a challenge based on Fourth Amendment grounds. In Faniel the court found that an employee, who was given a ride to her home by company personnel who intended to recover unauthorized electrical equipment, had not proved an absence of lawful consent sufficient to sustain a finding of false imprisonment.^[1]

Moreover, Weiss does not lend support to the majority's finding. While it is true that in Weiss the plaintiff testified that she was forcibly detained against her will, the court found her testimony not credible. Id. at 721. The court there found only that parents have the right which all citizens have to peaceably dissuade Plaintiff of her particular religious views, provided they use no form of unlawful compulsion to effect their purpose. What occurred here was simply an effort, in private, to persuade a willing listener to disavow the tenets of the Unification Church. * * *

* * * * * *

It is clear that Plaintiff has the right to be free of any coercive attempt to speak with her * * *.

Id. at 722.

Certainly, parents who disapprove of or disagree with the religious beliefs of their adult offspring are free to exercise their own First Amendment rights in an attempt, by speech and persuasion without physical restraints, to change their adult children's minds. But parents who engage in tortious conduct in their "deprogramming" attempts do so at the risk that the deprogramming will be unsuccessful and the adult children will pursue tort remedies against their parents. To allow parents' "conviction that the judgmental capacity of their adult child is impaired by her religious indoctrination" to excuse their tortious conduct sets a dangerous precedent.

Here, the evidence clearly supported a verdict against Norman Jungclaus on the false imprisonment claim, and no reasonable basis existed for denying judgment notwithstanding the verdict. The trial court's holding in this regard should be reversed.

The second issue which particularly concerns me was the instruction by the trial [299 NW 2d 135] court that the jury could consider the fact that The Way paid plaintiff's legal bills in assessing her credibility and awarding damages. I concur with the court's holding that such an instruction is error, although in the context of this case harmless error. I write to emphasize the compelling reasons why such an instruction should not be given. First, the fact that The Way aided and encouraged plaintiff to bring the lawsuit has little to do with whether the defendants falsely imprisoned the plaintiff or whether they intentionally inflicted emotional distress on her. It is not uncommon for a layperson to talk to others and get advice before bringing a lawsuit. Nor is it uncommon for groups to provide money and other support to its members as they pursue individual causes of action. The contributions of the NAACP, which financially assists litigation aimed at eliminating racial barriers, were recognized, as the majority opinion notes, in NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed. 405 (1963). Such aid not only allows a person to exercise his or her right to seek redress through our courts, it also effectuates that fundamental underpinning of our judicial system.

In the instant case, to admit evidence that The Way paid plaintiff's attorneys fees improperly shifted the jury's attention from the nature of defendants' acts to the acceptability of The Way. Such a shift of attention could unduly prejudice plaintiff because she exercised her First Amendment right of association with an unpopular religious group.

Furthermore, that evidence was irrelevant to the motive for her claim for damages. The reason plaintiff altered the amounts of compensation sought from her parents was, according to her testimony, her belief that she had to sue for money. Only after the suit was commenced did she learn that she could sue for legal protection. Plaintiff was entitled to seek compensation from the defendants individually, all together, or in any combination. Therefore, that she chose to sue her parents for a token amount has little to do with who was paying the legal fees.

The fact that a group or others support a plaintiff and may derive some benefit unrelated to plaintiff's cause of action should not be introduced at trial and considered by the jury as it determines plaintiff's credibility and the amount of damages to be awarded. The ultimate effect can only be to deter plaintiffs and defendants from accepting assistance from groups or causes which may not be popular in our society. This would mean that in suits like the present one, plaintiffs with unpopular beliefs who cannot afford costly legal representation must forgo their rights to seek redress in our courts or utilize the courts at the risk that evidence of support from their minority religious or political group may be used to undermine all or part of their claims.

Lastly, I would address plaintiff's claim that the trial court erred in denying her motion to amend her complaint or add a new cause of action. I agree that the motion was properly denied because it was untimely, but I would not conclude, as suggested by footnote 4 of the majority opinion, that defendant parents' attempts to "deprogram" their daughter from her religious beliefs did not constitute a violation of her rights under 42 U.S.C. § 1985(3). Although one federal court has so held, see Weiss v. Patrick, 453 F.Supp. 717, 722 (D.R. I.),aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), a number of courts have reached the contrary conclusion. In Augenti v. Cappellini, 84 F.R.D. 73 (M.D.Pa.1979), for example, defendants' arguments that their attempts to deprogram their son "were motivated solely by parental concern * * * to further his physical and mental health" did not persuade the court that the "invidiously discriminatory animus" necessary for a § 1985(3) action was lacking. Id. at 78. Several other cases interpreting the legislative history of § 1985(3) have determined that the protection of the provisions does extend to religious groups. See Jackson v. Associated Hospital Service,414 F.Supp. 315 (E.D.Pa.1976), aff'd, 549 F.2d 795 (3rd Cir.), cert. denied, 434 U.S. 832, 98 [299 NW 2d 136] S.Ct. 117, 54 L.Ed.2d 93 (1977); Rankin v. Howard, 457 F.Supp. 70, 74-75 (D.Ariz. 1978); cf. Mandelkorn v. Patrick, 359 F.Supp. 692, 697 (D.D.C.1973). In reaching this conclusion, the court in Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978) observed:

While religious status may differ from racial status because it is not a congenital and inalterable trait, membership in a minority religious group, like membership in a minority racial group, has often excited the fear, hatred and irrationality of the majority. Two thousand years of human history compellingly prove that no easier road to martyrdom is found than in adherence to an unpopular religious faith. For these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of § 1985(3).

Id. at 491.

I join in the views expressed by Justice Wahl, and particularly take issue with a rule which authorizes what is euphemistically described as "limitations upon the adult child's mobility" whenever a parent, or indeed a stranger acting for a parent, subjectively decides, without the benefit of a professional opinion or judicial intervention, that the adult child's "judgmental capacity" is impaired and that she should be "extricated" from what is deemed to be a religious or pseudo-religious cult.

The rule adopted by the majority states:

We hold that where parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or pseudo-religious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.

We furnish no guidelines or criteria for what constitutes "impaired judgmental capacity" other than the fact that the adult child has embraced an unorthodox doctrine with a zeal which has given the intervenor cause for alarm, a concern which may be well-founded, ill-founded, or unfounded.

Nor do we specify whether the "cult" must be for a benign or a malevolent purpose. It is enough that the intervenor has reason to believe it is a cult i. e. "an unorthodox system of belief" and that at some juncture during the adult child's involuntary confinement, she "assents," that is to say, yields or surrenders, possibly from exhaustion or fatigue, and possibly for a period only long enough to regain her composure.

If there is any constitutional protection we should be slow to erode it is the right of serious-minded people, young or old, well-adjusted, or maladjusted, to search for religious or philosophical fulfillment in their own way and in their own time without the interference of meddling friends or relatives, however well-intentioned they may be.

At age 21, a daughter is no longer a child. She is an adult. Susan Peterson was not only an adult in 1976 but she was a bright, well-educated adult. For whatever reason, she was experiencing a period of restlessness and insecurity which is by no means uncommon in students of that age. But to hold that for seeking companionship and identity in a group whose proselyting tactics may well be suspect, she must endure without a remedy the degrading and humiliating treatment she received at the hands of her parents, is, in my opinion, totally at odds with the basic rights of young people to think unorthodox thoughts, join unorthodox groups, and proclaim unorthodox views. I would reverse the denial of recovery as to that cause of action.

[1]  Plaintiff in her motion for a judgment notwithstanding the verdict stated that she wished to recover only nominal damages against her parents. This court has held that a judgment for defendant will not be reversed on appeal simply to allow a plaintiff to recover nominal damages. Erickson v. Midland Nat'l Bank & Trust Co., 205 Minn. 224, 285 N.W. 611 (1939).

[2]  While we decline at this time to suggest a particular alternative, we observe that some courts have permitted the creation of temporary guardianships to allow the removal of cult members to therapeutic settings. If the individuals desire, at the end of the conservatorship they may return to the cult. Actions have also been initiated against cult leaders on the basis of criminal liability. See generally Delgado, supra, at 73-97.

[3]  At trial, plaintiff sought the production of personal correspondence between Sorlien and his bishop. The trial court denied discovery ruling that the documents sought were not reasonably calculated to lead to relevant evidence under Minn.R.Civ.P. 26.02(1). On appeal, plaintiff argues that the trial court's failure to permit discovery was mistakenly based on Minn.Stat. § 595.02, subd. 3 (1978), imposing a clergyman-penitent privilege, which plaintiff argued was not relevant to the facts of the case. While we disagree with plaintiff's characterization of the ruling of the trial court, because we deem the directed verdict proper, the issue is moot.

[4]  In respect to § 1985, a federal district court recently held that where defendant was motivated by paternal concerns for a plaintiff's health and well-being and not from the abhorrence of plaintiff's religious views, plaintiff failed to establish the existence of a class-based animus necessary to allege a violation under 42 U.S.C. § 1985 (1976). Weiss v. Patrick, 453 F.Supp. 717 (D.R.I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979).

__________

[1]  Indeed, People v. White, 53 Mich.App. 51, 218 N.W.2d 403 (1974), affirming the defendant's conviction for attempted kidnapping, held that later consent does not relate back to previous acts by defendant. Id.at 55-56, 218 N.W.2d at 405.

582 F. Supp. 1093

Civ. No. 4-82-1329.

United States District Court, D. Minnesota, Fourth Division.

March 6, 1984.

[582 F. Supp. 1094] Lee Boothby and Robert A. Yingst, Boothby, Huff & Yingst, Berrien Springs, Mich., for plaintiff.

William M. Schade, Somsen, Dempsey & Schade, New Ulm, Minn., Gregory F. Kuderer, Erickson, Zierke, Kuderer, Myster, Madsen & Wollschlager, Fairmont, Minn., and Xavier E. Grenas, Houston, Tex., for defendants Deborah Ann Coy, Daniel Charles Graham and Larry Bisman.

Vincent Jennings, pro se.

Robert Lewis Brandyberry, pro se.

The plaintiff in this case, William Eilers, has moved the Court to enter a directed verdict against the defendants on his claims that the defendants falsely imprisoned him and violated his civil rights during a deprogramming attempt in 1982. Both sides have submitted briefs on the question and the Court has heard oral argument.

After careful consideration the Court has decided as follows:

1. Plaintiff's motion for a directed verdict on the issue of false imprisonment is granted and the Court holds, as a matter of law, that plaintiff William Eilers was falsely imprisoned without legal justification.

2. Plaintiff's motion for a directed verdict with respect to 42 U.S.C. § 1985(3) is granted as to certain elements of the plaintiff's claim that a conspiracy on the part of the defendants deprived him of certain of his federal constitutional rights.

The evidence in this case has established the following facts. The plaintiff William Eilers and his pregnant wife Sandy were abducted from outside a clinic in Winona, Minnesota in the early afternoon of Monday, August 16, 1982, by their parents and [582 F. Supp. 1095] relatives and by the defendant deprogrammers who had been hired by the parents of the plaintiff and his wife. The plaintiff was 24 years old at the time and his wife Sandy was 22. The couple was living on a farm near Galesville, Wisconsin and had traveled to Minnesota for Sandy's pre-natal examination.

At the time of the abduction, Bill and Sandy Eilers were members of the religious group Disciples of the Lord Jesus Christ. There is ample evidence that this group is an authoritarian religious fellowship directed with an iron hand by Brother Rama Behera. There is also evidence that Bill Eilers' personality, and to some extent his appearance, changed substantially after he became a member of the group. These changes were clearly of great concern to members of the plaintiff's family. However, other than as they may have affected the intent of the parents of Bill and Sandy Eilers in the actions they took in seizing Bill and Sandy, the beliefs and practices of the Disciples of the Lord Jesus Christ should not be, and are not, on trial in this case.

While leaving the Winona Clinic on August 16, 1982 the plaintiff, who was on crutches at the time due to an earlier fall, was grabbed from behind by two or more security men, forced into a waiting van, and driven to the Tau Center in Winona, Minnesota.^[1] Forcibly resisting, he was carried by four men to a room on the top floor of the dormitory-style building. The windows of this room were boarded over with plywood, as were the windows in his bathroom and in the hallway of the floor. The telephone in the hallway had been dismantled.

The plaintiff was held at the Tau Center for five and one-half days and subjected to the defendants' attempts to deprogram him. Shortly after his arrival at the Tau Center, and after a violent struggle with his captors, the plaintiff was handcuffed to a bed. He remained handcuffed to the bed for at least the first two days of his confinement. During this initial period, he was allowed out of the room only to use the bathroom, and was heavily guarded during those times. On one occasion, the plaintiff dashed down the hall in an attempt to escape, but was forcibly restrained and taken back to the room. After several days of resistance, the plaintiff changed tactics and apparently pretended to consent to his confinement.

The defendants and the plaintiff's relatives had agreed in advance of the abduction that the plaintiff would be kept at the Tau Center for one week, regardless of whether the plaintiff consented to their actions. At no time during the week was the plaintiff free to leave the Tau Center, nor at any time were reasonable means of escape available to him. Three of the eight people hired by the parents were designated "security men." These individuals, described by witnesses as at least six feet tall and weighing over 200 pounds, guarded the exits on the floor at all times.

On the evening of Saturday, August 21, 1982, as the plaintiff was leaving the Tau Center to be transported to Iowa City, Iowa for further deprogramming, he took advantage of his first opportunity to escape and jumped from the car in which he was riding. Local residents, attracted by the plaintiff's calls for help, assisted the plaintiff in making his escape and the police were summoned.^[2]

The evidence has also shown that within three weeks before the abduction occurred, the plaintiff's relatives had contacted authorities in Trempealeau County, Wisconsin in an attempt to have the plaintiff civilly committed. Family members have testified that they believed the plaintiff was suicidal because of a letter he had written to his [582 F. Supp. 1096] grandmother before joining the Disciples of the Lord Jesus Christ in which he wrote that demons were attacking his mind and telling him to kill himself rather than go to the Lord. Defendants' Exhibit A at 13-14. Joyce Peterson, a psychiatric social worker, interviewed the plaintiff in person on July 26, 1982. After interviewing the plaintiff and consulting with the Trempealeau County Attorney, Peterson informed the plaintiff's relatives that no legal grounds existed in Wisconsin for confining the plaintiff because he showed no signs of being a danger to himself or to others. The defendants in this case were aware of that information at the time they abducted and held the plaintiff.

In considering the plaintiff's motion for a directed verdict, the Court is required to view the evidence in the light most favorable to the defendants and to resolve all conflicts in the evidence in the defendants' favor. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983). A directed verdict motion should be granted only when reasonable jurors could not differ as to the conclusions to be drawn from the evidence. Id.

The plaintiff has alleged two main causes of action against the defendants: false imprisonment and conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). These claims will be discussed separately.

The plaintiff's first claim is that the defendants' conduct in confining him at the Tau Center constituted false imprisonment for which the defendants had no legal justification. False imprisonment consists of three elements:

1) words or acts intended to confine a person;

2) actual confinement; and

3) awareness by the person that he or she is confined.

Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976); Restatement (Second) of Torts § 35 (1965).

The evidence in this case has over-whelmingly established each of the elements of false imprisonment. By their own admission, the defendants intended to confine the plaintiff for at least one week. While the defendants maintain that their purpose was to help the plaintiff, it is not a defense to false imprisonment that the defendants may have acted with good motives. Malice toward the person confined is not an element of false imprisonment. Strong v. City of Milwaukee, 38 Wis.2d 564, 567, 157 N.W.2d 619, 621 (1968); Witte v. Haben, 131 Minn. 71, 74, 154 N.W. 662, 663 (1915); W. Prosser, Law of Torts 48 (4th ed. 1971).

There is also no question that the plaintiff was actually confined. Relying on the Minnesota Supreme Court's decision in Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980),cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981), the defendants contend that there was no actual confinement because there is evidence that the plaintiff consented to the defendants' actions, at least by the fourth day of his confinement.^[3]  The plaintiff, in contrast, [582 F. Supp. 1097] has testified that he merely pretended to consent in order to gain an opportunity to escape. The plaintiff's apparent consent is not a defense to false imprisonment. Many people would feign consent under similar circumstances, whether out of fear of their captors or as a means of making an escape. But in this case, unlike the Peterson case relied on by the defendants,^[4] it is undisputed that the plaintiff was at no time free to leave the Tau Center during the week in question, nor were any reasonable means of escape available to him. Under these circumstances, the Court finds, in agreement with many other authorities, that the plaintiff's apparent consent is not a defense to false imprisonment. 32 Am. Jur.2d False Imprisonment § 15 (1982); Restatement (Second) of Torts § 36 (1965). The Court therefore holds, as a matter of law, that the plaintiff has proven the necessary elements of false imprisonment.

The next question is, given that the defendants falsely imprisoned the plaintiff, were their actions legally justified so as to preclude liability for false imprisonment? As justification for their actions, the defendants rely on the defense of necessity. They claim that the confinement and attempted deprogramming of the plaintiff was necessary to prevent him from committing suicide or from otherwise harming himself or others. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975).

The defense of necessity has three elements.^[5] The first element is that the defendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others.^[6] State v. Johnson, 289 Minn. 196, 199-200, 183 N.W.2d 541, 543 (1971); People v. Patrick, 126 Cal.App.3d 952, 961, 179 Cal.Rptr. 276, 282 (1981); People v. Patrick, 541 P.2d 320, 322 (Colo.Ct.App. 1975); Restatement (Second) of Torts § 892(D) comment a (1979).

[582 F. Supp. 1098] It is not clear that such a danger existed on August 16, 1982. The alleged threats of suicide made by the plaintiff were contained in a letter dated June 14, 1982, and that letter recounted impressions the plaintiff had had some time earlier. Moreover, Joyce Peterson, the psychiatric social worker who personally interviewed the plaintiff on July 26, 1982, concluded in her report, and reported to the plaintiff's relatives, that the plaintiff was not dangerous to himself or to others. Nevertheless, viewing the evidence in the light most favorable to the defendants, the Court will assume for purposes of this motion that the plaintiff was in imminent danger of causing physical injury to himself or to others.

The second and third elements of the necessity defense are intertwined. The second element is that the right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975) (dictum); Annot., 92 A.L.R.2d 580 (1963). The third element is that the actor must use the least restrictive means of preventing the apprehended harm. People v. Patrick, 126 Cal.App.3d 952, 960, 179 Cal.Rptr. 276, 282 (1981); W. LaFave and A. Scott, Criminal Law 387 (1972); cf. Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980) (where religious beliefs are implicated, first amendment requires resort to least restrictive alternative).

In this case, the defendants' conduct wholly fails to satisfy either of these elements of the necessity defense. Once having gained control of the plaintiff, the defendants had several legal options available to them. They could have:

1) turned the plaintiff over to the police;

2) sought to initiate civil commitment proceedings against the plaintiff pursuant to Minn.Stat. § 253B.07 (1982);

3) sought professional psychiatric or psychological help for the plaintiff with the possibility of emergency hospitalization if necessary pursuant to Minn.Stat. § 253B.05 (1982).

At no time did the defendants attempt, or even consider attempting, any of these lawful alternatives during the five and one-half days they held the plaintiff, the first five of which were business days. Instead, they took the plaintiff to a secluded location with boarded-up windows, held him incommunicado, and proceeded to inflict their own crude methods of "therapy" upon him — methods which even the defendants' own expert witness has condemned. Well aware that the police were searching for the plaintiff, the defendants deliberately concealed the plaintiff's location from the police.

It must be emphasized that the Minnesota Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the basis of mental illness. Minn.Stat. § 253B.07 et seq. (1982); see generally Janus and Wolfson, The Minnesota Commitment Act of 1982: Summary and Analysis, 6 Hamline L.Rev. 41 (1983). Those procedures include examination of the proposed patient by qualified professionals, Minn.Stat. § 253B.07, subd. 1 (1982), and a judicial determination that the proposed patient is dangerous and in need of treatment, id., subd. 6. Manifold procedural protections, including the right to counsel, Minn.Stat. § 253B.03, subd. 9 (1982), are afforded the proposed patient at all stages of this civil commitment proceeding. Obviously, none of these protections were afforded the plaintiff in this case.

Minnesota law also provides that, in situations where there is not time to obtain a court order, a person may be admitted or held for emergency care and treatment in a hospital, without a court order, upon a written statement by a licensed physician or psychologist that the person is mentally ill and is in imminent danger of causing injury to himself or to others. Minn.Stat. § 253B.05, subd. 1 (1982). The defendants in this case — unlicensed and untrained individuals — made no effort to obtain any such [582 F. Supp. 1099] statement from a licensed physician or psychologist.

The defendants' failure to even attempt to use the lawful alternatives available to them is fatal to their assertion of the necessity defense. Where the Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the ground of mental illness, not even parents or their agents acting under the best of motives are entitled to disregard those procedures entirely.^[7]

The Court has assumed for the purposes of this motion that the defendants were justified in initially restraining the plaintiff based upon their belief that he was in imminent danger of harming himself or others. But even under those circumstances, the defense of necessity eventually dissipates as a matter of law. No specific time limit can be set, because the period during which an actor is acting out of necessity will vary depending on the circumstances of each case. In this particular case, however, where the defendants held the plaintiff, a 24-year-old adult, for five and one-half days with no attempt to resort to lawful alternatives available to them, the Court could not sustain a jury verdict in the defendants' favor on the issue of false imprisonment. Accordingly, the Court rules as a matter of law that the plaintiff was falsely imprisoned without justification. The issue of what amount of damages, if any, the plaintiff suffered from this false imprisonment is a question for the jury.

The next claim upon which the plaintiff has moved for a directed verdict is that the defendants conspired to and did deprive him of his federal constitutional rights in violation of 42 U.S.C. § 1985(3). The Court will direct a verdict as to some, but not all, of the elements of this claim.

A cause of action under section 1985(3) consists of the following elements:

1) a conspiracy;

2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws;

3) an act or acts in furtherance of the conspiracy; and

4) an injury to the person or property of a citizen or a deprivation of the rights and privileges of any citizen.

Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

Three of these elements are clearly present in this case. By their own admission, the defendants planned and conspired to abduct the plaintiff and to hold him against his will. They committed several acts in furtherance of this conspiracy including seizing the plaintiff at the Winona Clinic, transporting him to the Tau Center, and holding him there against his will for five and one-half days. These actions were in clear violation of the plaintiff's constitutional rights, including his right not to be deprived of liberty without due process of law, seeTaylor v. Gilmartin, 686 F.2d 1346, 1358 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 [582 F. Supp. 1100] (1983), and his right to freedom of interstate travel,^[8] see Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). The Court holds as a matter of law that the plaintiff has established the first, third, and fourth elements of his section 1985(3) cause of action.

The remaining element is that the conspiracy be for the purpose of depriving the plaintiff of the equal protection of the laws. The United States Supreme Court has interpreted this element as requiring that the defendants' conduct be motivated by class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. In other words, in order for the plaintiff to recover under section 1985(3), the defendants must have taken action against him because of his membership in a group or class that is protected by that statute. The Court has previously ruled in this case that the religious group Disciples of the Lord Jesus Christ is a group protected by the statute. See, e.g., Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Action v. Gannon, 450 F.2d 1227, 1231-32 (8th Cir.1971) (en banc); Cooper v. Molko, 512 F.Supp. 563, 569 (N.D.Cal.1981); Comment, The Deprogramming of Religious Sect Members: A Private Right of Action Under Section 1985(3), 74 N.W.U.L.Rev. 229 (1979). The remaining question is whether the defendants took action against the plaintiff because of an animus toward that group or, as the defendants contend, because of a concern for the welfare of the plaintiff. The Court finds that the defendants' motivation is an issue upon which reasonable jurors could differ. See, e.g., Augenti v. Cappellini, 84 F.R.D. 73, 78 (M.D.Pa.1979). The Court therefore denies the plaintiff's motion for a directed verdict on this element of the plaintiff's section 1985(3) cause of action.

This will not be a popular decision. While the Court has substantial sympathy for the feelings and reactions of the parents of Bill and Sandy Eilers, this Court is sworn to uphold the law and the Constitution of the United States. If the basic rights of an American citizen are not recognized in a federal court by a federal judge, where will they be recognized?

Based on the foregoing, IT IS ORDERED that the plaintiff's motion for a directed verdict is granted as to his claim for false imprisonment (Count IV of the Second Amended Complaint), and as to certain elements of his 42 U.S.C. § 1985(3) claim (Count I of the Second Amended Complaint) described herein. The plaintiff's motion is in all other respects denied.

[1] After dropping the plaintiff at the Tau Center, one of the family members drove the van to a location eight miles outside of Winona and left it there.

[2] The plaintiff's wife Sandy stayed with the deprogrammers and has not returned to the group Disciples of the Lord Jesus Christ of which the plaintiff is still a member. She has since divorced the plaintiff and has sole custody of the couple's infant son.

[3] In Peterson, the parents of 21-year-old Susan Jungclaus Peterson engaged deprogrammers to extricate their daughter from The Way Ministry. Peterson resisted the deprogramming for two or three days, but from then on stayed with her deprogrammers willingly for the next 13 days. At the end of the 16-day period, Peterson returned to The Way Ministry, apparently at the urging of her fiance who was also a member of the group.

Peterson then brought an action for false imprisonment against her parents, the deprogrammers, and others. After a finding for the defendants, the plaintiff appealed. Affirming the judgment for the defendants, the Minnesota Supreme Court ruled:

We hold that when parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or psuedoreligious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.

299 N.W.2d at 129 (footnote omitted).

The court made clear, however, that it was not endorsing the practice of deprogramming:

Owing to the threat that deprogramming poses to public order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the First Amendment requires resort to the least restrictive alternative so as to not impinge upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1940).

299 N.W.2d at 129 (footnote omitted).

[4] As the Minnesota Supreme Court noted in its opinion, the plaintiff in Peterson had ample opportunities to escape, yet willingly chose to stay with her deprogrammers:

The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of the 16 days. During that time she took many excursions into the public sphere, playing softball and picknicking in a city park, roller-skating at a public rink, flying aboard public aircraft and shopping and swimming while relaxing in Ohio. Had Susan desired, manifold opportunities existed for her to alert the authorities of her allegedly unlawful detention; in Minneapolis, two police officers observed at close range the softball game in which she engaged; en route to Ohio, she passed through the security areas of the Twin Cities and Columbus airports in the presence of security guards and uniformed police; in Columbus she transacted business at a bank, went for walks in solitude and was interviewed by an F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did she complain of her treatment or suggest that defendants were holding her against her will.

Peterson v. Sorlien, 299 N.W.2d 123, 128 (Minn. 1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981). In contrast, the plaintiff in this case was confined to the Tau Center, under guard, at all times and had no similar opportunities to escape.

[5] The elements of the necessity defense in the criminal context, see Model Penal Code § 3.02, are analyzed in Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Crim. 289 (1974).

[6] For the purposes of this motion, the Court will assume that the defendants, as agents of the plaintiff's parents, are entitled to rely on the beliefs of the parents in this regard. See United States v. Patrick, 532 F.2d 142, 145 (9th Cir. 1976) (trial court held beliefs of parents transfer to agents; issue not raised on appeal). But see People v. Patrick, 126 Cal.App.3d 952, 962, 179 Cal.Rptr. 276, 282-83 (1981) (agents must personally believe in justifiability of their actions and must "take all appropriate steps necessary to investigate the reasonableness of the beliefs held by their principals in order to convince themselves of the necessity of criminal action").

[7] The author of one of the most thorough legal analyses of the subject of deprogramming has reached the following conclusions:

(1) Involuntary deprogramming should not proceed unless there has been a prior judicial determination that the individual is incompetent or under mind control.

(2) Therapy should not proceed until milder measures, including removal to a neutral environment for a period of time, have failed.

....

(8) Whenever possible, deprogramming should be carried out by licensed psychologists or psychiatrists, or by lay individuals working under the supervision of a psychologist or psychiatrist.

(9) Involuntary deprogramming should be carried out only pursuant to a court order and with periodic reporting to the court.

(10) The court hearing that results in a deprogramming order should be accompanied by due process protection, including the right of the individual to appear, to be represented by counsel, and to present witnesses on his own behalf.

Delgado, Religious Totalism: Gentle and Ungentle Persuasion Under the First Amendment, 51 S.Cal.L.Rev. 1, 86-88 (1977) (footnotes omitted).

[8] The Court does not decide whether the defendants' actions deprived the plaintiff of his first amendment right to freedom of religion as that question is intimately tied up with the question of the defendants' motivation. As discussed below, the defendants' motivation is a question for the jury.

In any event, absent state action or state involvement, a deprivation of first amendment rights is not actionable under section 1985(3). United Bhd. of Carpenters and Joiners, Local 610 v. Scott, ___ U.S. ___, 103 S.Ct. 3352, 3357, 77 L.Ed.2d 1049 (1983).

641 N.W.2d 587
465 Mich. 770

Docket No. 119111.

Supreme Court of Michigan.

April 9, 2002.

[641 N.W.2d 588] Lopatin, Miller, Freedman, Bluestone, Herskovic & Domol (by Richard E. Shaw), Southfield, for the plaintiff-appellant.

Athina T. Siringas, Detroit, for the defendants-appellees.

Plaintiff's first amended complaint alleged defendants were liable to him under theories of assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence as a result of his being illegally arrested by a bounty hunter and taken to Missouri. In Missouri it was confirmed that the actual person who should have been sought was plaintiff's brother, who had been arrested on a drug charge there. The trial court granted summary disposition for defendants pursuant to MCR 2.116(C)(10). The Court of Appeals affirmed the dismissal, holding the existence of the facially valid Missouri arrest warrant provided authority to arrest plaintiff. We reverse the grant of summary disposition and remand for further proceedings.

The pertinent facts are not in dispute. We borrow the Court of Appeals statement of facts:

Plaintiff's brother Vincent Bright was arrested by Missouri police on a drug charge. Vincent identified himself as plaintiff Dennis Bright, using plaintiff's address, date of birth and social security number. Vincent entered into a bond agreement with defendant, A-Able Bail Bonds, which was issued in plaintiff's name and which Vincent signed using plaintiff's name. When Vincent subsequently absconded on the bond, an arrest warrant was issued in plaintiff's name, again using plaintiff's address, date of birth and social security number. Defendant Tim Moore apprehended plaintiff in Detroit and returned him to the Missouri court, where he was later released and the arrest warrant was [641 N.W.2d 589] amended to name Vincent. Plaintiff brought this action, alleging assault and battery, false imprisonment, intentional infliction of emotional distress and negligence. The trial court granted summary disposition to defendants, finding that the facially valid Missouri warrant provided the authority to arrest plaintiff.^[1]

The Court of Appeals affirmed. Plaintiff has applied for leave to appeal.

The Court of Appeals held that, given probable cause, a private citizen may make an arrest for a felony committed in the person's presence or otherwise. MCL 764.16; People v. Bashans, 80 Mich.App. 702, 713, 265 N.W.2d 170 (1978). It further noted that a warrant provides probable cause for an arrest, and an arrest on a facially valid warrant is not a basis for a claim of false imprisonment. Gooch v. Wachowiak, 352 Mich. 347, 351-354, 89 N.W.2d 496 (1958). It reasoned that the facially valid warrant provided the authority needed to execute it. People v. Rowe, 95 Mich.App. 204, 208-209, 289 N.W.2d 915 (1980). The Court concluded that because the Missouri warrant was facially valid and the erroneous identification was not caused by defendants, the trial court did not err in granting summary disposition.

This case concerns the interpretation of M.C.L. § 764.16. In construing statutes, "[t]he primary goal of judicial interpretation is to ascertain and give effect to the intent of the Legislature." McJunkin v. Cellasto Plastic Corp., 461 Mich. 590, 598, 608 N.W.2d 57 (2000). To do that we examine the "language of the statute itself." In re MCI Telecommunications, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). If the language is unambiguous, the Court applies the statute as written.

We deal with a plainly written statute in this matter. MCL 764.16 provides:

A private person may make an arrest in the following situations:

(a) For a felony committed in the private person's presence.

(b) If the person to be arrested has committed a felony although not in the private person's presence.

(c) If the private person is summoned by a peace officer to assist the officer in making an arrest.

(d) If the private person is a merchant, an agent of a merchant, an employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe that the person to be arrested has violated section 356c or 356d of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.356c and 750.356d of the Michigan Compiled Laws, in that store, regardless of whether the violation was committed in the presence of the private person.

The plain language of subsection (b) provides authority for a private person to arrest another, if the other has committed a felony. The statute does not grant arrest authority where the other has not committed a felony even if the private person has probable cause to believe [641 N.W.2d 590] the other has committed a felony.^[2] Notwithstanding the clarity of the Michigan statute, the Court of Appeals in Bashans incorrectly read a probable cause qualification into M.C.L. § 764.16. This may not be done. Although such authority may have existed at common law, that authority was abrogated by our Legislature in 1927. 1927 PA 175. Thus, an arrest is only justified by subsection (b) if the person to be arrested has actually committed a felony.^[3] To proceed to arrest, no matter how manifest the likelihood the seized person is the felon, is outside the scope of subsection (b) if the seized person did not commit the felony.^[4] In such circumstances, subsection (b) does not shield the party making the "arrest" from liability.^[5] [641 N.W.2d 591] Further, the Court of Appeals opinion in Rowe, which was cited by the Court of Appeals as support in this case, does not support the lower courts' conclusions. In that case, two city police officers arrested a defendant on a warrant outside their city, but inside the county where the city was located. It was claimed that they had no jurisdiction to effect the arrest outside the city. The Court disagreed, holding that they had the statutory authority to execute the warrant anywhere in the state. The Court further held that, "Pursuant to the statutes cited, when a warrant is directed to a law enforcement officer, the warrant itself provides the authority needed to execute it." Id. at 208-209, 289 N.W.2d 915. The present case is distinguishable because it does not involve an arrest by a law enforcement officer. Thus, while a warrant may give a law enforcement officer authority to execute it, it should not be construed as extending such authority to a private person. The authority for a private person to arrest in certain limited situations comes from M.C.L. § 764.16. Under its subsection (b), authority is given only when the person to be arrested has actually committed a felony.

Therefore, because it is undisputed that plaintiff had not committed a felony, defendants did not have authority to arrest him. The facially valid Missouri warrant did not, under these facts, provide the authority to arrest plaintiff.^[6] The trial court erred in granting summary disposition. Accordingly, we reverse the judgments of the circuit court and Court of Appeals, and remand this case to the circuit court for further proceedings consistent with this opinion. MCR 7.302(F)(1).

[641 N.W.2d 592] CORRIGAN, C.J., and MICHAEL F. CAVANAGH, WEAVER, MARILYN J. KELLY, TAYLOR, YOUNG, and MARKMAN, JJ., concurred.

[1] Unpublished opinion per curiam, issued April 10, 2001, 2001 WL 690467 (Docket No. 219182), p. 1.

[2] While numerous states have similar statutes, several are more expansive and essentially grant authority to private parties to arrest on the basis of reasonable cause. For example, Cal Penal Code 837 provides:

A private person may arrest another:

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

[3]  It is noteworthy that the key phrase in subsection [b] is "committed a felony" (emphasis added). Of course, a felony is "committed" when a person engages in the conduct that constitutes a felony. Thus, an arrest by a private person of another person who has actually committed a felony would be valid regardless of whether the arrested person is ever tried for or convicted of the felony. In the present case, it is undisputed that plaintiff is innocent of the alleged Missouri felony underlying his purported arrest. Accordingly, we need not consider the proper allocation of the burden of proof with regard to whether a person committed a felony in a case where that is a disputed issue. Likewise, we assume without deciding for purposes of our analysis that M.C.L. § 764.16(b) provides authority for a private person to arrest for the commission of a felony under the laws of another state.

[4] While the plain language of subsection (b) is dispositive, it is noteworthy that subsection (d) of M.C.L. § 764.16 authorizes a merchant (and certain affiliated parties) to make an arrest merely on the basis of "reasonable cause" to believe that a person has committed retail fraud in violation of M.C.L. § 750.356c or M.C.L. § 750.356d in the merchant's store. The absence of any such "reasonable cause" language in subsection (b) underscores that it means what it states in providing authority to arrest only if the person to be arrested has committed a felony.

[5] We note that this opinion is consistent with the result and basic analysis of our recent decision in People v. Hamilton, 465 Mich. 526, 638 N.W.2d 92 (2002). In Hamilton, a city police officer stopped a vehicle outside his jurisdiction and eventually arrested the driver, the defendant in Hamilton, for the misdemeanor of operating under the influence of liquor (OUIL). It was later discovered that the defendant had two prior OUIL convictions, which led to him being charged with the felony of OUIL, third offense (OUIL-3d). However, importantly, the police officer was unaware of the prior OUIL convictions at the time of the arrest. This Court concluded that the police officer lacked authority under Michigan statutes, including the statute at issue in this case, M.C.L. § 764.16, to make the arrest for the misdemeanor of simple OUIL. Id. at 530-532, 638 N.W.2d 92. However, we also concluded that the arrest did not involve a constitutional violation under the Fourth Amendment because the police officer had probable cause to suspect the defendant committed OUIL.Id. at 533, 638 N.W.2d 92. The essential holding of Hamilton was that there is no exclusionary rule requiring suppression of evidence flowing from an arrest by a police officer that is only "statutorily illegal," but does not violate the Fourth Amendment. Id. at 532-535, 638 N.W.2d 92. Obviously, the present civil case does not implicate any concerns about suppression of evidence in a criminal prosecution on the basis of police misconduct. Accordingly, there is no conflict between the dispositive holding of Hamilton and the present opinion.

However, Hamilton did include the following language that may warrant further explanation:

Under M.C.L. § 764.16, a private person has the authority to make a felony arrest, but lacks the authority to make a misdemeanor arrest except in nonapplicable circumstances. "`No one without a warrant has any right to make an arrest in the absence of actual belief, based on actual facts creating probable cause of guilt.'" People v. Panknin, 4 Mich.App. 19, 27, 143 N.W.2d 806 (1966), quoting People v. Bressler, 223 Mich. 597, 600-601, 194 N.W. 559 (1923), paraphrasing People v. Burt, 51 Mich. 199, 202, 16 N.W. 378 (1883). Here, the officer only had probable cause to make an arrest for a misdemeanor, i.e., OUIL. The fact that defendant may have committed a felony, i.e., OUIL, third offense, was only discovered after the arrest. Accordingly, the officer lacked the statutory authority to make the arrest under M.C.L. § 764.16 [ Id. at 531-532, 16 N.W. 378 (emphasis added).]

The critical point was that the police officer in Hamilton did not realize that the defendant in that case may have committed the felony of OUIL 3d. Accordingly, the officer in that case plainly did not even purport to arrest the defendant for a felony, but only for the misdemeanor of simple OUIL. Thus, M.C.L. § 764.16 did not provide authority for the misdemeanor arrest made in Hamilton. To the extent that the language from prior cases in the above quotation from Hamilton suggests that the existence of probable cause is relevant to determining whether a private person's arrest of another person for a felony is permitted by subsection (b) of M.C.L. § 764.16, it is incorrect. Rather, as explained in this opinion, the plain language of subsection (b) means that the question is whether the seized person actually committed a felony. Of course, regardless of M.C.L. § 764.16, a police officer or other state actor acting as such is constitutionally precluded by the Fourth Amendment from making an arrest without probable cause. Hamilton, supra at 533, 638 N.W.2d 92.

[6] Defendants argue that Moore's status as a bounty hunter insulates him from liability because of alleged wide-ranging common-law powers based in part on the bail bond contract. It is not necessary to determine the extent of those powers, if any, since plaintiff was not a party to the contract.

 [No. 22490. En Banc. December 29, 1930.] 

Bell, McNeil & Bowles (J. Speed Smith and Henry Elliott, Jr., of counsel) for appellant.

Caldwell & Lycette, Eggerman & Rosling, A. C. Van Soelen, Bruce MacDougall, and Todd, Holman & Sprague, for respondents.

MAIN, J.—This action was brought by the administrator of the estate of Hamilton I. Cartwright, deceased, who died as the result of a blow received in a prize fight. To the amended complaint, which will be referred to as the complaint, each of the defendants interposed a demurrer, which was sustained. The [633] plaintiff refused to plead further and elected to stand upon the complaint. A judgment was entered dismissing the action, from which the plaintiff appeals.

February 5, 1929, Hamilton I. Cartwright and Cecil Geysel engaged in a prize fight in the city of Seattle, during which Cartwright received a blow which caused his death. In the complaint there are no facts showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

The controlling question is whether the action can be maintained for wrongful death when the encounter, though unlawful, was entered into with the consent of both parties. Section 2556, Rem. Comp. Stat., makes prize fighting unlawful, and provides that one engaging therein shall be guilty of a gross misdemeanor, with a proviso which is not here material.

The administrator has no greater rights pertaining to a recovery of damages than would the deceased have had, had he lived and brought an action for any injuries that he may have received. Ostheller v. Spokane & Inland Empire R. Co., 107 Wash. 678, 182 Pac. 630.

Upon the question stated, the adjudicated cases, as well as the text writers, are in conflict. One line supports what is known as the majority rule, and the other, the minority. The majority rule has been stated as follows:

"Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other."

[634] This rule is supported by the cases of Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853; Adams v. Waggoner, 33 Ind. 531, 5 Am. St. 230; Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 185, 4 Am. St. 535; McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168; Morris v. Miller, 83 Neb. 218, 119 N. W. 458, 131 Am. St. 636, 20 L. R. A. (N. S.) 907; Colby v. McClendon, 85 Okl. 293, 206 Pac. 207, 30 A. L. R. 196; Roger v. Belcher, 100 W. Va. 694, 131 S. E. 556; Littledike v. Wood, 69 Utah 323, 255 Pac. 172.

The minority rule has been stated as follows:

"Where parties engage in a mutual combat in anger, the act of each is unlawful and relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or malicious intent to do serious injury upon the part of the defendant."

The cases of White v. Whittall, 113 Mich. 493, 71 N. W. 1118; Smith v. Simon, 69 Mich. 481, 37 N. W. 548; McNeil v. Choate, 197 Ky. 682, 247 S. W. 955; Lykins v. Hamrick, 144 Ky. 80,137 S. W. 852; Wright v. Starr, 42 Nev. 441, 179 Pac. 877, support this rule.

With reference to the two rules, after reviewing the authorities, the supreme court of Oklahoma, in the comparatively recent case of Colby v. McClendon, 85 Okl. 293, 206 Pac. 207, said:

"This court has never passed upon the question, but it seems that the majority rule is supported by the best reasoning. We think it should be followed in a case where the parties enter into a mutual combat with deadly weapons. The minority rule is announced in cases where the injury resulted from fist fights, although the case of Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852, was where parties were engaged in a cutting scrape. We think it would be against public policy to apply the minority rule in a case where persons enter into a mutual combat with deadly weapons."

In each of the cases which support the majority rule, the combat was entered into in anger, with a malicious [635] intent to seriously injure, and in some of them the question of excessive force was present as bearing upon the question of damages. In the cases which support the minority rule, the encounter, or fist fight, as it may be called, was entered into in anger, from which it would be necessarily inferred that there was an intent to do injury.

The majority rule carries into a civil action, where one party sues the other for damages for something which has been done in violation of positive law, the principle applied in criminal prosecutions by the state to the effect that the consent of one or both of the parties does not prevent such a prosecution. The minority rule does not apply this principle when a civil action is brought by one of the parties against the other for damages which have been sustained in a combat consented to by both parties, but which was in violation of positive law. The authorities supporting the majority rule recognize that if the thing done is not one prohibited by positive law, for which a penalty is imposed, then consent is a complete defense in a civil action for damages. The majority rule is an exception to two generally well recognized and accepted principles of law: (a) That one who has consented to suffer a particular invasion of his private right has no right to complain; and (b) that no one shall profit by his own wrongdoing. The minority rule recognizes and applies these principles.

The facts in the case now before us do not bring it within the authorities supporting the majority rule, because here there are no facts which show anger, malicious intent to injure, or excessive force. It may be stated that the facts of this case do not contain one element of the minority rule, that of anger. It is unnecessary, as we view it, in the present case to adopt either rule. It is sufficient to say that in our opinion [636] one who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport. To enforce the criminal statute against prize fighting, it is not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent. This view is supported by the rule tentatively adopted by the American Law Institute in the Restatement of the Law of Torts, and is discussed in American Institute Treatise No. 1 (a) Supporting Restatement No. 1, Torts, chapter V, § 75, beginning at page 172, 1925. In part it is there said:

“Notwithstanding the numerical weight of authority against the view that an assent to a breach of the peace is a legally effective consent to such invasions of interest of personality as are involved therein the minority view is preferred for the following reasons: “1. The majority view is obviously an exception to the general principle that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain if another acts upon his consent so given. The very nature of rights of personality, which are in freedom to dispose of one's interests of personality as one pleases, fundamentally requires this to be so. There is a further principle, applicable not only in tort law but throughout the whole field of law, and perhaps more conspicuously in other subjects, to the effect that no man shall profit by his own wrongdoing.

“The majority view is an exception to both of these two fundamental principles. Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his person and to determine by whom and how it shall be touched has not been invaded. And it is equally clear that if he has so expressed his consent to the blow that, were he not party to a breach of the peace, his assent would be an operative consent and so bar his liability, he is [637] profiting by the illegality of his conduct if because he is party to the breach of the peace he gains a right of action, which but for his criminal joinder therein he would not have had.

“The majority view, being, as it is, an exception to two such otherwise universal principles of law, can be sustained only if it is founded upon authorities which were not only based upon sound reason when announced but which are based upon reasons which still remain sound and convincing, or if the exception is one which is required to carry into effect some weighty public policy.”

In the opinion in the case of Milam v. Milam, 46 Wash. 468, 90 Pac. 595, neither of the above rules was mentioned or discussed, and we do not regard that case as controlling. There is some language in it which leads to the belief that it was decided on the theory of excessive force.

The appellant cites a number of cases which hold that consent to an abortion by a patient is no defense to a subsequent action for damages against the doctor for performing the operation in a negligent manner, but if that be the rule in such cases it is not necessarily applicable to the facts now before us. We here distinctly do not express any opinion upon whether consent to an abortion precludes a right of recovery for the negligent act of the doctor in performing the operation.

The judgment will be affirmed.

MITCHELL, C.J., PARKER, TOLMAN, BEALS, MILLARD, and BEELER, JJ., concur.

HOLCOMB, J. (dissenting)—I am unable to concur in the prevailing opinion because it is contrary to the better reasoning as stated in what is called the majority rule, is contrary to public policy, and sets a bad precedent.

[638] The first error contained in the prevailing opinion is that there are no facts in the complaint showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force. If excessive force be necessary as an element of recovery in a case where a mutual combat was voluntarily engaged in, the complaint alleges it in the following language:

“. . . the said Cecil Geysel, having engaged and while engaged in the said unlawful encounter with the said Hamilton I. Cartwright, continued fighting with the said Hamilton I. Cartwright and did unlawfully and unjustifiably assault, strike, beat and injure the said Hamilton I. Cartwright, and did strike the said Hamilton I. Cartwright so cruelly and with such force and violence as to knock him down and cause him to fall upon the floor, from which said assault, striking, beating and blows, and from the injuries received from the falling the said Hamilton I. Cartwright died."

The foregoing certainly was an allegation of excessive force and brings the case squarely under our own decision in Milam v. Milam, 46 Wash. 468, 90 Pac. 595, which is distinguished in the majority opinion upon the ground that it was decided on the theory of excessive force. The principal contention in the Milam case, as shown by the briefs filed therein, was that the affray in that case was mutual and voluntary and, therefore, the act committed was not done against the will of the party assaulted. Unless this court intended to deny that proposition, there could be no recovery even when excessive force appears, just as in the present case.

For once, I am unable to agree with either the reasoning or conclusions arrived at tentatively by the American Law Institute in its Restatement of the Law, reference to which is made in the majority opinion, as being the better reasoning and the better principle to [639] follow in deciding this case. I admit that ancient precedents should not govern where they are bad. One ancient case criticized in the Restatement, supra, was that of Matthew v. Ollerton, Comerbach 218, 90 Eng. Reprint 438, which is said to be a mere dictum stating:

“. . . if a man license another to beat him, such license is void as it is against the peace.”

This dictum, it is said, was followed in a more modern case, Boulter v. Clark, Buffer's Nisi Prius, 16, where the presiding judge ruled that, the fighting being unlawful, the consent to fight, if proved, would not bar the plaintiff.

Although that may be but dictum and of faulty, human origin, there is ancient and Divine authority in the Mosaiclaw:

“And if men strive together, and one smite another, with a stone, or with his fist and he die not but keepeth his bed; if he rise again, and walk about upon his staff, then he that smote him be quit; only he shall pay for the loss of his time and shall cause him to be thoroughly healed." Exodus XXI:18, 19.

See, also, Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230, McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853, Littledike v. Wood, 69 Utah 323, 255 Pac. 172.

Our statute, Rem. Comp. Stat., § 2556, makes prize fighting unlawful. Hence, there could be no lawful consent to such a combat. Physical combats are against the peace, anyway. Had it been a duel, it would have been unlawful, and consent to fight a duel would not prevent recovery by either those injured, on the ground of excessive force, or the heirs or personal representatives of those injured.

The reasoning of Judge Cooley is, to my mind, greatly superior to the reasoning employed in the Re [640] statement of the Law on Torts. Judge Cooley reasons as follows, Cooley on Torts (3d Ed.), p. 282:

“It is implied, in an assault or battery, that it is committed against the assent of the person assaulted; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away; it would be criminal in him to take it, and equally criminal in any one else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault.

“But suppose, in the duel one is not killed, but only wounded; may he have an action against his adversary for this injury? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non fit injuria. But if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a consent which the law forbids can be accepted in law as a legal protection?

"Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to…

“But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here, one being the State, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not de [641] priving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other."

See, also, 1 Jaggard on Torts, p. 203, to the same effect.

I am convinced the complaint stated a cause of action under the correct principles of law and the judgment should be reversed.

[1] Reported in 294 Pac. 570.

23 Colo. 113

1. JURORS—EXCUSE—QUALIFICATION.

Service as a juror in another court within one year next preceding is not, under the act of 1889 (Mills' Ann. Stats., sec. 2595), sufficient to entitle the juror to be excused from service; neither does it constitute a ground of challenge for cause.

2. EVIDENCE—HYPOTHETICAL, QUESTIONS.

Questions to medical experts calling for their opinion upon a hypothesis within the probable or possible range of the evidence are permissible.

3. SAME—RECORD.

Where proof of a conviction of crime is admissible, the record of the conviction is usually the best evidence thereof; and as a general rule, parol proof of the fact should, on objection, be excluded.

4. SAME.

Evidence the tendency of which is to raise collateral questions and thereby divert the attention of the jury from the real issues should be excluded.

5. EXEMPLARY DAMAGES.

Exemplary damages may, in the cases specified in the statute, be awarded for an injury inflicted maliciously, or in wanton and reckless disregard of the plaintiff's rights.

6. EVIDENCE—FINANCIAL CONDITION OF DEFENDANT IN DAMAGE CASES.

Where exemplary damages may be awarded, the financial condition of the defendant may be shown.

7. SELF-DEFENSE.

A defendant is not liable in damages to one wounded by a shot fired by him in necessary self-defense, even though the plaintiff was not his assailant.

8. SAME.

When a defendant in a civil action for damages sustained by reason of a gunshot wound inflicted by him justifies under a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that, under the circumstances, his fears and the means of defense made use of were reasonable.

Appeal from the District Court of Arapahoe County.

EDWIN S. RAYMOND, appellee, as plaintiff below, complains of Anguste Courvoisier, appellant, and alleges that on [114] the 12th day of June, A. D. 1892, plaintiff was a regularly appointed and duly qualified acting special policeman in and for the city of Denver; that while engaged in the discharge of his duties as such special policeman, the defendant shot him in the abdomen, thereby causing a serious and painful wound ; that in so doing the defendant acted wilfully, knowingly and maliciously, and without any reasonable cause.

It is further alleged that by reason of the wound so received plaintiff was confined to his bed for a period of ten days,

during which time he was obliged to employ, and did employ, a physician and nurse, the reasonable value of such services being one hundred (100) dollars, winch sum plaintiff had obligated himself to pay; that the wound rendered him incapable of performing his duties as special policeman for a period of three weeks.

It is further alleged that the injury caused the plaintiff great physical pain, and permanently impaired his health. Plaintiff alleges special and general damages to the amount of thirty thousand, one hundred and fifty (30,150) dollars, and asks judgment for that sum, with costs.

The defendant, answering the complaint, denies each allegation thereof, and, in addition to such denials, pleads five separate defenses. These defenses are all in effect a justification by reason of unavoidable necessity. A trial resulted in a verdict and judgment for plaintiff for the sum of three thousand, one hundred and forty-three (3,143) dollars. To reverse this judgment, the cause is brought here by appeal.

Mr. OSCAR REUTER and Mr. WM. YOUNG, for appellant.

Mr. F. J. HANGS and Mr. S.S. ABBOTT, for appellee.

It is admitted or proven beyond controversy that appellee received a gunshot wound at the hands of the appellant at [115] the time and place designated in the complaint, and that as the result of such wound the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances:

That Mr. Courvoisier, on the night in question, was asleep in his bed in the second story of a brick building, situate at the corner of South Broadway and Dakota streets in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed shortly after midnight by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and upon his refusal to comply with this request, they used profane and abusive epithets toward him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and passing upstairs commenced knocking upon the door of a room where defendant's sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs and expelled the intruders from the building. In doing this he passed downstairs and out on the sidewalk as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air, but instead of retreating they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second and perhaps a third shot. The first shot fired attracted the attention of plaintiff Raymond and two deputy sheriffs, who were at the Tramway depot, across the street. These officers started toward Mr. Courvoisier, who still continued to shoot, but two of them stopped when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer and to stop shooting. Although the night was dark, the street was well lighted by electricity, and when the officer [116] approached him defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of.

The plaintiff's theory of the case is that he was a duly authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace, and that the defendant, knowing him to be a police officer, recklessly fired the shot in question.

The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in self-defense, and that defendant did so believe at the time of firing the shot.

The first error argued brings up for review the action of the district court in overruling a challenge interposed by the

defendant to the juror Gibbons. The ground of this challenge will appear from the following:

"Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court.

"Q. As a talesman? A. Yes, sir. "The Court. When did you serve, Mr. Gibbons? A. A few weeks ago.

"The Court. Since the first of January? A. Yes, sir."

The statute relied upon to support the challenge reads as follows:

"The fact that any juror in any district or county court shall have served as juror of the regular panel, or as talesman, in either of said courts at anytime within the year next preceding, shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror." Session Laws, 1889, page 220, sec. 1.

The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the stat[117]ute, and we think it must be upheld as the obvious meaning of the act.

The second error assigned is upon the overruling of defendant's objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions or for expert opinions upon the probable effects of the wound. We think the objections to these questions were properly overruled. The questions contain such a description of the wound as is easily understood by the lay mind, and the answers show that it was fully understood by the experts. The questions are framed upon the assumption that the evidence tended to prove certain facts. This assumption, being within the probable or possible range of the evidence, is permissible. Jackson v. Burnham, 20 Colo. 532.

The third assignment of error challenges the refusal of the court to permit witnesses for the defendant to testify as to whether or not, as a result of a criminal prosecution, one of the participants was convicted of " throwing a stone and hitting Mr. Courvoisier that night." The objection to this question was properly sustained. If proof of such conviction was admissible, the record is the best evidence thereof, except in the instances specified by statute. Mills' Annotated Statutes, sec. 4822. But as this action is between other parties, even the record is not admissible in this case. 

It was attempted to prove by the witness Reed, who was at the time marshal of the town of South Denver, that the neighborhood in the immediate vicinity of defendant's house had been the scene of frequent robberies and disturbances shortly prior to this shooting. This evidence was offered for the purpose of justifying the defendant's action. It is claimed that conduct which would cause no apprehension in a quiet and peaceful neighborhood would naturally and rea [118] sonably excite alarm if disturbances and breaches of the peace were frequent. We think, however, the court was justified in refusing this evidence. Its tendency is to raise collateral issues, and thereby divert the attention of the jury.

Under the fourth assignment of error it is claimed that evidence of the financial standing of the defendant was not admissible. If the jury believed from the evidence that the shooting was done with malice, or that the injury was the result of a wanton and reckless disregard of plaintiff's rights and not in necessary self-defense, exemplary damages might have been awarded, and wherever such damages are permissible, the financial condition of the defendant may be shown. In a number of cases, commencing with Murphy v. Hobbs, 7 Colo. 541, it has been held that in civil actions for injuries resulting from torts, exemplary damages, as a punishment, were not permissible, if the offense is punishable under the criminal laws. These decisions were based upon the common law. In 1889 the legislature provided, by statute, that exemplary damages may be given in certain cases. Before the passage of this act the question was one upon which the courts disagreed, but the statute has now settled the practice in this state.

The next error assigned relates to the instructions given by the court to the jury and to those requested by the defendant and refused by the court. The second instruction given by the court was clearly erroneous. The instruction is as follows: "The court instructs you that if you believe from the evidence, that, at the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff."

The vice of this instruction is that it excluded from the jury a full consideration of the justification claimed by the defendant. The evidence for the plaintiff tends to show that the shooting, if not malicious, was wanton and reckless, but the evidence for the defendant tends to show that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life [119] was in danger, or that he was in danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that he did so believe.

He swears that his house was invaded shortly after midnight by two men, whom he supposed to be burglars; that when ejected, they were joined on the outside by three or four others; that the crowd so formed assaulted him with stones and other missiles, when, to frighten them away, he shot into the air; that instead of going away someone approached him from the direction of the crowd; that he supposed this person to be one of the rioters, and did not  ascertain that it was the plaintiff until after the shooting. He says that he had had no previous acquaintance with plaintiff; that he did not know that he was a police officer, or that there were any police officers in the town of South Denver; that he heard nothing said at the time by the plaintiff or anyone else that caused him to think the plaintiff was an officer; that his eyesight was greatly impaired, so that he was obliged to use glasses, and that he was without glasses at the time of the shooting, and for this reason could not see distinctly. He then adds: "I saw a man come away from the bunch of men and come up towards me, and as I looked around I saw this man put his hand to his hip pocket. I didn't think I had time to jump aside, and therefore turned around and fired at him. I had no doubts but it was somebody that had come to rob me, because some weeks before Mr. Wilson's store was robbed. It is next door to mine."

By this evidence two phases of the transaction are presented for consideration: First, was the plaintiff assaulting the defendant at the time plaintiff was shot? Second, if not, was there sufficient evidence of justification for the consideration of the jury? The first question was properly submitted, but the second was excluded by the instruction under review. The defendant's justification did not rest entirely upon the proof of assault by the plaintiff. A riot was in progress, and the defendant swears that lie was attacked with missiles, hit with stones, brickbats, etc.; that he shot [120] plaintiff, supposing him to be one of the rioters. We must assume these facts as established in reviewing the instruction, as we cannot say what the jury might have found had this evidence been submitted to them under a proper charge.

By the second instruction the conduct of those who started the fracas was eliminated from the consideration of the jury. If the jury believed from the evidence that the defendant would have been justified in shooting one of the rioters had such person advanced towards him as did the plaintiff, then it became important to determine whether the defendant mistook plaintiff for one of the rioters, and if such a mistake was in fact made, was it excusable in the light of all the circumstances leading up to and surrounding the commission of the act? If these issues had been resolved by the jury in favor of the defendant, he would have been entitled to a judgment. Morris v. Piatt, 32 Conn. 75; Patton v. People,18 Mich. 318; Kent v. Cole, 84 Mich. 579; Higgins v. Minaghan, 76 Wis. 298.

The opinion in the first of the cases above cited contains an exhaustive review of the authorities and is very instructive. The action was for damages resulting from a pistol shot wound. The defendant justified under the plea of self-defense. The proof for the plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at another, and the court held that, if the defendant was justified in firing the shot at his antagonist, he was not liable to the plaintiff, for the reason that the act of shooting was lawful under the circumstances.

Where a defendant in a civil action like the one before us attempts to justify on a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances; and also as to the reasonableness of the means made use of. In this case perhaps the verdict would not have been different had the jury been properly instructed, but it might have been, and therefore the judgment must be reversed.

Reversed.

VOL. LXVIII—8

71 A. 188
81 Vt. 471

Supreme Court of Vermont. Chittenden.

Oct. 2, 1908.

Exceptions from Chittenden County Court; Seneca Haselton, Judge.

Action by Sylvester A. Ploof against Henry W. Putnam. Heard on demurrer to declaration. Demurrer overruled, and declaration adjudged sufficient, and defendant excepted. Judgment affirmed, and cause remanded.

Martin S. Vilas and Cowles & Moulton, for plaintiff.

Batchelder & Bates, for defendant.

It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did, moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon [71 A. 189] it was driven upon the shore by the tempest, without the plaintiff's fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore, receiving injuries. This claim is set forth in two counts—one in trespass, charging that the defendant by his servant with force and arms willfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly, and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an Inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Poph. 101, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that, as soon as the sheep were off his land, he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground; but the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that, as the defendant had done his best to recall the dog, trespass would not lie. In trespass of cattle taken in A., defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased them towards the pound, and they escaped from him and went into A., and he presently retook them; and this was held a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, pl. 19. If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a, pl. 1. A traveler on a highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining land without becoming a trespasser because of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a, 4, pl. 24, K. a, pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore, and was in danger of being carried off by the sea; and it was held no trespass. See, also, Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 28. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff's casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof, and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insists that the counts are defective, in that they fail to show that the servant in casting off the rope was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not [71 A. 190] imply authority to do an unlawful act, and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words "willfully, and designedly" in one count, and "negligently, carelessly, and wrongfully" in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment. 13 Ency. P. & Pr. 922; Voegeli v. Pickel Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See, also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

Judgment affirmed and cause remanded.

[456] 109 Minn. 456

Nos. 16,262 - (102).

Supreme Court of Minnesota.

January 14, 1910.

Action in the district court for St. Louis county to recover $1,200 for damage to plaintiffs' wharf, caused by defendant negligently keeping its vessel tied to it. The defendant in its answer alleged that a portion of the cargo was consigned to plaintiffs' dock and on November 27, 1905, its vessel was placed alongside at the place and in the manner designated by plaintiffs and the discharge of cargo continued until ten o'clock that night, that by the time the discharge of cargo was completed the wind had attained so great a velocity the master and crew were powerless to move the vessel. The case was tried before Ensign, J., who denied the defendant's motion to direct a verdict in its favor, and a jury which rendered a verdict in favor of plaintiffs for $500. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

H. R. Spencer, for appellant.

[457] Alford & Hunt, for respondents.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs' dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o'clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly [458] being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages [459] which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs' dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants' house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

[460] Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs' property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

I dissent. It was assumed on the trial before the lower court that appellant's liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents' dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

[461] In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with Lewis, J.

[1] Reported in 124 N. W. 221.

[193 Cal.Rptr. 425] [145 Cal.App.3d 372] Mary Cynthia Dunlap, San Francisco, for cross-complainant and appellant.

Long & Levit, Ronald E. Mallen, Donald W. Carlson, Marsha L. Morrow, San Francisco, for cross-defendant and respondent.

[145 Cal.App.3d 373] BARRY-DEAL, Associate Justice.

The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy^[1] has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent's motion for judgment on the pleadings. We reverse the judgment.

Respondent, an attorney, filed an action in municipal court against appellant for $1,520 in fees for representing her in a family law matter. Appellant filed her answer and a cross-complaint for damages alleging, inter alia, fraud and legal malpractice, and the action was transferred to the superior court. After a demurrer to the cross-complaint was filed, appellant by stipulation filed her first amended cross-complaint, which is the subject of this appeal. After several hearings on the demurrer to the amended cross-complaint, the court (Kongsgaard, J.) sustained a demurrer to the count alleging intentional/negligent infliction of emotional distress and dismissed the two counts alleging legal malpractice for appellant's failure to amend.^[2] The court overruled the demurrer to the count alleging battery and the one alleging intentional misrepresentation, in spite of respondent's argument that an action was barred by Civil Code section 43.5, the "anti-heart balm" statute.^[3]

Prior to trial, on May 12, 1980, the Second District filed its opinion in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 164 Cal.Rptr. 618, holding that a man stated no cause of action in a cross-complaint against a woman for misrepresentations about her use of birth control in an action brought by her to establish paternity of their child and to impose on him an obligation for child support. In the case at bar, the court (Sherwin, J.) agreed with respondent that Stephen K. v. Roni L. was controlling and granted his motion for judgment on the pleadings, which was entered on [145 Cal.App.3d 374] July 25, 1980. Respondent's complaint for fees was remanded to the municipal court for resolution.

A motion for judgment on the pleadings based on failure to state a cause of action has a function similar to that of a general demurrer. (See 4 Witkin, Cal Procedure (2d ed. 1971) Proceedings Without Trial, §§ 161-170, pp. 2816-2823.) On review of the judgment in either case, all material facts alleged in the pleading under attack must be accepted as true.^[4] (Marvin v. Marvin [193 Cal.Rptr. 426] (1976) 18 Cal.3d 660, 666, 134 Cal.Rptr. 815, 557 P.2d 106; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393.) As a reviewing court, we, of course, are not bound by the trial court's determination on whether the alleged facts state a cause of action. With these rules in mind, we summarize the essential facts alleged in appellant's first amended cross-complaint.

Appellant and respondent met about April 1978. Appellant retained respondent, an attorney, to represent her in a post-dissolution proceeding for modification of spousal support and child support for her three children; the legal relationship was in existence at the time of the alleged events. On two occasions, June 25 and June 30, 1978, she and respondent had sexual intercourse with each other. Before they engaged in sexual intercourse the first time, appellant demanded that respondent use a contraceptive device, i.e., a condom, and explained that for emotional and financial reasons she did not want to become pregnant. Appellant further told respondent "... that she would not engage in sexual intercourse with him if there was any likelihood of her becoming pregnant; ..." Respondent told appellant not to worry, saying, " 'I can't possibly get anyone pregnant.' " She understood this to mean that he was sterile by nature or as the result of a vasectomy.

Respondent's representation about his procreative inability was false, and he knew it was false. It was made with the intent to induce appellant to engage in sexual intercourse, protected or not. Appellant, relying on respondent's assurance of his sterility, consented to and did engage in sexual intercourse with respondent. The attorney-client relationship produced in appellant a sense of trust in respondent, and she justifiably relied on his representations.

[145 Cal.App.3d 375] As a result of sexual intercourse with respondent, appellant became pregnant. The pregnancy was determined to be tubal, and, as a consequence, appellant was forced to undergo surgery to save her life. Her Fallopian tube was removed, and she was rendered sterile by the surgery.^[5] She suffered physical, emotional, and financial injuries as a result of the pregnancy.

Based on the alleged facts, appellant has stated a cause of action in battery, i.e., an unconsented invasion of her interest in freedom from intentional, unlawful, and harmful or offensive contact with her person. (See Prosser, Torts (4th ed. 1971) § 9, pp. 34-37 [hereafter cited as Prosser]; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 194, pp. 2482-2483.) Consent to an act, otherwise a battery, normally vitiates the wrong. (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480, 184 Cal.Rptr. 787; Prosser, supra, § 18, p. 101.) However, appellant has alleged alternate grounds for invalidating her consent and rendering respondent's act a battery: (1) that the act of impregnation exceeded the scope of the consent (see Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240, 104 Cal.Rptr. 505, 502 P.2d 1; Estrada v. Orwitz (1946) 75 Cal.App.2d 54, 57, 170 P.2d 43), and (2) that the consent to intercourse was fraudulently induced (Prosser, supra, § 18, p. 105; see Butler v. Collins (1859) 12 Cal. 457, 463). As she has alleged physical, emotional, and financial damage proximately caused by the wrongful touching, appellant's cause of action for battery was sufficiently pleaded.

As an alternative theory for recovery in tort, appellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides: "One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers." Deceit, within the meaning of section 1709, [193 Cal.Rptr. 427] is defined by Civil Code section 1710^[6] to include both fraudulent misrepresentations ("The suggestion, as a fact, of that which is not true, by one who does not believe it to be true ...") and negligent misrepresentations ("The assertion, as a fact, of that which is not true, by one who has no reasonable [145 Cal.App.3d 376] ground for believing it to be true ..."). (See, generally, 4 Witkin, Summary of Cal.Law, Torts, supra, §§ 445-482, pp. 2710-2744; Prosser,supra, ch. 18, §§ 105-110, pp. 683-736; Rest.2d Torts, §§ 310, 557A.)

In pleading a cause of action for deceit, a plaintiff must specifically plead the following elements: (1) a false representation (ordinarily of a fact) made by the defendant; (2) knowledge or belief on the part of the defendant that the representation is false, or that the representation was made by defendant without reasonable grounds for believing its truth; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation by the plaintiff; (5) damage to the plaintiff, resulting from such reliance. (See Prosser, supra, § 105, pp. 685-686; Gagne v. Bertran (1954) 43 Cal.2d 481, 487-489, 275 P.2d 15; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 804-805, 142 Cal.Rptr. 487.)

Appellant has pleaded all the essential allegations, as set forth above, of a cause of action for deceit. Respondent's challenge to the sufficiency of the pleading, i.e., "She does not allege that she asked him what he meant by that ambiguous statement ['I can't possibly get anyone pregnant'] ...," is meritless. His proposed allegation relates to proof of justifiable reliance at trial, not to sufficiency of the pleading.

It is a fundamental principle of our system of jurisprudence that for every legal wrong there is a remedy (Civ.Code, § 3523), and that an injured party should be compensated for all damage proximately caused by the wrongdoer unless a departure from the basic principle is mandated by a legislative exception or by strong public policy. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173; Murdock v. Murdock (1920) 49 Cal.App. 775, 782-783, 194 P. 762, citing Civ.Code, §§ 1667, 1708, 1709, 3523, and 2224; cf. Rowland v. Christian (1968) 69 Cal.2d 108, 111-112, 70 Cal.Rptr. 97, 443 P.2d 561, characterizing Civ.Code, § 1714, as a basic principle of tort law.)

Respondent asserts that appellant's action comes within the statutory exception declared in Civil Code section 43.5 and is thus barred. We find that statute is not applicable. Section 43.5 provides, in relevant part, "No cause of action arises for: ... [p] (c) Seduction ...." The word "[s]eduction," as used in the statute, is a term of art involving elements substantively different from those alleged by appellant.

[145 Cal.App.3d 377] "Seduction imports the idea of illicit intercourse accomplished by the use of arts, persuasions, or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue. [Citation.]" (Davis v. Stroud (1942) 52 Cal.App.2d 308, 317, 126 P.2d 409.) It is no longer possible for two consenting adults in the State of California to engage in [193 Cal.Rptr. 428] "illicit intercourse." (See Note, California "Consenting Adults" Law: The Sex Act in Perspective (1976) 13 San Diego L.Rev. 439.)

The old action for seduction required that the woman was "... chaste and virtuous at the time of the alleged seduction ..." (Davis v. Stroud, supra, 52 Cal.App.2d at p. 316, 126 P.2d 409), and it was used primarily to protect young, inexperienced women who had succumbed to the sexual advances of older men. (See Carter v. Murphy (1938) 10 Cal.2d 547, 75 P.2d 1072.)

In the instant case appellant complains not because her virtue was violated or because she suffered humiliation and loss of reputation, but because the sexual act was unprotected and led to an ectopic pregnancy as a result of respondent's misrepresentation. The gravamen of the complaint in this situation is substantially different from an action for "[s]eduction," which is indeed precluded by Civil Code section 43.5.^[7] (Cf. Mack v. White (1950) 97 Cal.App.2d 497, 500, 218 P.2d 76.)

Nevertheless, respondent argues that the public policy considerations underlying the statutory bar to seduction actions are sound and are applicable to the case before us. He points out that seduction actions are "... fruitful sources of fraud and extortion because of the ease with which they may be employed to embarrass, harass and besmirch the reputation of one wholly innocent of wrongdoing ...," quoting from Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789, 218 P.2d 854. He predicts a multitude of unfounded or fraudulent claims if appellant's claim is allowed.

Our Supreme Court has held that fear of unfounded or fraudulent claims is not a valid reason for disallowing a tort action predicated upon a meritorious claim. In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the court stated: "[t]he possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is 'to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims ..., the result is a virtual acknowledgment that [145 Cal.App.3d 378] the courts are unable to render justice in respect to them.' [Citation.]" (Id., at p. 737, 69 Cal.Rptr. 72, 441 P.2d 912.) The reasoning is sound and is applicable to the case before us.

Appellant argues that the trial court mistakenly relied on Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, because that case is factually distinguishable and the public policy considerations underlying the two actions differ. Respondent reiterates that appellant's action contravenes public policy "... to eliminate governmental intervention into private sexual dealings ...," as enunciated in Stephen K.

In that case, Stephen, the defendant in a paternity action, after admitting paternity, cross-complained against Roni, the mother of the child, claiming that she had falsely represented that she was taking birth control pills. The father alleged that in reliance upon such representation, he engaged in sexual intercourse with Roni, which eventually resulted in the birth of a baby unwanted by the father. He further alleged that as a proximate result of the misrepresentation, he had become obligated to support the child financially and had suffered mental distress.

In affirming the dismissal of Stephen's cross-complaint, the court held that Roni's misrepresentation was not actionable and gave rise to no liability. (Id., at p. 642, 164 Cal.Rptr. 618.) In summary, the court concluded that "... the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor." (Id., at p. 643, 164 Cal.Rptr. 618.) The court added that to "... supervise the promises [193 Cal.Rptr. 429] made between two consenting adults as to the circumstances of their private sexual conduct ... would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy ...," and that "... as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference." (Id., at pp. 644-645, 164 Cal.Rptr. 618.)

The facts in Stephen K. and in the case before us, both based on deceit, are obviously similar. A significant distinction between the cases, however, lies in the element of damage. In essence, Stephen was seeking damages for the "wrongful birth" of his child^[8] resulting in support obligations and alleged [145 Cal.App.3d 379] damages for mental suffering. Here, no child is involved; appellant is seeking damages for severe injury to her own body.

Although the Stephen K. court alluded to Stephen's claim as separate and apart from the issue of either parent's obligation to raise and support the child, it reached its decision without attempting to resolve the problem of the mother's reduced financial ability to support the child if she were required to pay damages to the father. We think this concern over the child, and not governmental intrusion into private sexual matters, which we discuss below, is the central issue in Stephen K. and compels different public policy considerations.

Civil Code section 196a imposes on the natural father as well as the natural mother of a child the obligation to give the child support and education suitable to his or her circumstances. To assess damages against the mother for false representations about birth control would have the practical effect of reducing or eliminating support from the father by way of offset. Erasing much or all of the father's financial support, to the detriment of the child, is clearly against public policy and the statutory mandate.

Further, we think it is not sound social policy to allow one parent to sue the other over the wrongful birth of their child. Using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child.^[9] Such a lawsuit would indeed be strong evidence of parental rejection, which could only be emotionally detrimental to the child. Such an action, with its potential for engendering disharmony between a mother and father, would also be contrary to the spirit of the recent legislation providing for mediation between parents in order to reduce acrimony. (See Civ.Code, § 4607.)

In short, we agree with the Stephen K. court that Roni's misrepresentation was not actionable, but we find that different policy reasons justify that result. The question remains, however, whether allowing appellant's [193 Cal.Rptr. 430] action in the case before us encourages "... unwarranted governmental intrusion [145 Cal.App.3d 380] into matters affecting the individual's right to privacy ..." and thus contravenes public policy.

The constitutional right to privacy extends to all matters relating to marriage, family, and sex. (People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194; Cal. Const., art. I, § 1; Stanley v. Georgia (1968) 394 U.S. 557, 564, 89 S.Ct. 1243, 1247-48, 22 L.Ed.2d 542; Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird (1972) 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349.) The right to privacy, however, is not absolute, and governmental intervention in matters affecting an individual's right to privacy in sexual matters has been sanctioned in both criminal and civil law.

California has adopted a general scheme for the regulation of the criminal aspects of sexual activity and has determined when sexual intercourse between persons not married to each other shall be criminal. (In re Lane (1962) 58 Cal.2d 99, 102-104, 22 Cal.Rptr. 857, 372 P.2d 897 [citing specific penal statutes].) Prosecution under many of the penal statutes, covering both consensual and forcible sexual acts, often requires testimony of a far more intimate sexual nature than in the case before us. The victim of many of the proscribed acts suffers an invasion of privacy in both the act and the required testimony. And, the state has a fundamental right to enact laws which promote public health, welfare, and safety, even though such laws may invade the offender's right of privacy. (People v. Mills (1978) 81 Cal.App.3d 171, 181, 146 Cal.Rptr. 411 [compulsory registration of convicted sex offenders].)

Even sexual relations within marriage, long held sacrosanct, have recently been opened to scrutiny when a spouse complains of forcible sexual intercourse. (Pen.Code, § 262.) The ancient policy of protecting the privacy of the marriage bed is outweighed in the modern view by the grievous harm to a man or woman caused by spousal rape. (See Freeman, "But If You [145 Cal.App.3d 381] Can't Rape Your Wife, Who[m] Can You Rape?": The Marital Rape Exemption Re-Examined (1981) 15 Family L.Q. 1.)

In the civil law, for example, our Legislature has recently amended Evidence Code section 621 to state a limited exception to the rule that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (See also Civ.Code, § 7004, subd. (a).) Either husband or wife, under certain circumstances, can bring an action to establish that the husband is not the biological father of his wife's child. (Evid.Code, § 621; cf. Michelle W. v. Ronald W. (1983) 139 Cal.App.3d 24, 188 Cal.Rptr. 413.) Here, traditional notions about the inviolability of certain aspects of human relationships have given way to recognition that former "protection" in reality worked hardship and injustice in many cases.

Where paternity of a child is at issue, the mother cannot refuse to answer all relevant questions about her sexual activity on the plea that it is a private matter. Her right of privacy must yield to " 'the historically important state interest of facilitating the ascertainment of truth in ... legal proceedings.' [Citation.]" (Fults v. Superior Court (1979) 88 Cal.App.3d 899, [193 Cal.Rptr. 431] 904, 152 Cal.Rptr. 210.) Nor can a man invoke the right of privacy to avoid a determination of paternity of a child he has fathered. (See Uniform Parentage Act (Civ.Code, §§ 7000-7021).)

Although the right to privacy is a freedom to be carefully guarded, it is evident that it does not insulate a person from all judicial inquiry into his or her sexual relations. We do not think it should insulate from liability one sexual partner who by intentionally tortious conduct causes physical injury to the other. (Cf. Marvin v. Marvin, supra, 18 Cal.3d 660, 682, fn. 21, 134 Cal.Rptr. 815, 557 P.2d 106.) Public policy does not demand such protection for the right of privacy.

Three out-of-state cases, without discussing public policy or the right to privacy, have held that a woman's consent to sexual intercourse was vitiated by the man's fraudulent concealment of the risk of infection with venereal disease or infestation with vermin. (See De Vall v. Strunk (Tex.Civ.App.1936) 96 S.W.2d 245 [single woman, seduced by promise of marriage, had action in battery against man who infected her with crab lice]; Crowell v. Crowell (1920) 180 N.C. 516 [105 S.E. 206] [wife was not under disability to maintain action for battery or fraud against husband for infecting her with venereal disease]; State v. Lankford (1917) 29 Del. 594 [102 A. 63] [man [145 Cal.App.3d 382] convicted of battery for fraudulently concealing venereal disease and infecting wife]; see Prosser, supra, § 18, p. 105.)

These old cases lend support to allowing the within action, in spite of the language in each case extolling the virtuous character of the woman involved.

We do not assess the wisdom nor predict the future course in the retreat from the double standard of morality for men and women in sexual matters. We do not think, however, at this stage of social mores, that it is relevant to judge appellant's action on the basis of morality.

Appellant and respondent differ markedly in their assessment of the impact of the attorney-client relationship in the case before us. Appellant contends that a fiduciary obligation extends to any type of conduct by which an attorney seeks to benefit at the client's expense. Respondent replies that no legal authority imposes on an attorney the burden of a fiduciary obligation with respect to his or her personal relations with a client. The parties have cited no case directly on point, and we can find none.

It is evident, however, that the lawyer-client relationship affects the proof of appellant's cause of action at trial, rather than the sufficiency of the pleadings. Because of the importance of the issue, we offer the following comments for the guidance of the trial court in further proceedings.

"[F]iduciary" and "confidential" have been used synonymously to describe " '... any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent....' " (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483, 71 P.2d 220; Bacon v. Soule (1912) 19 Cal.App. 428, 434, 126 P. 384.) Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client (see Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795), whereas a "confidential relationship" may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. (See Stevens v. Marco (1956) 147 Cal.App.2d 357, 374, 305 P.2d 669; Bolander v. Thompson (1943) 57 Cal.App.2d [193 Cal.Rptr. 432] 444, 447, [145 Cal.App.3d 383] 134 P.2d 924; Robbins v. Law (1920) 48 Cal.App. 555, 561, 192 P. 118.) The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.

Our Supreme Court has stated that "[t]he relation between attorney and client is a fidicuary relation of the very highest character, and binds the attorney to most conscientious fidelity ...." (Cox v. Delmas (1893) 99 Cal. 104, 123, 33 P. 836; see also Rader v. Thrasher (1962) 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sanguinetti v. Rossen (1906) 12 Cal.App. 623, 630, 107 P. 560; 1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, §§ 47-54, pp. 55-62.) Further, the court has admonished that "[a] member of the State Bar should not under any circumstances attempt to deceive another person, ..." (Cutler v. State Bar (1969) 71 Cal.2d 241, 252, 78 Cal.Rptr. 172, 455 P.2d 108; McKinney v. State Bar (1964) 62 Cal.2d 194, 196, 41 Cal.Rptr. 665, 397 P.2d 425; cf. Bus. & Prof.Code, § 6106.) Numerous cases have applied these basic principles where an attorney in breaching the fiduciary obligation has gained financial advantage. (See, e.g., Cutler v. State Bar, supra, 71 Cal.2d at p. 251, 78 Cal.Rptr. 172, 455 P.2d 108; Gold v. Greenwald (1966) 247 Cal.App.2d 296, 309-310, 55 Cal.Rptr. 660; Clark v. Millsap (1926) 197 Cal. 765, 783, 786, 242 P. 918.) We can find no valid reason to restrict these principles to actions involving financial claims of a client and not to apply them to actions in which the client alleges physical damage resulting from a violation of the attorney's fiduciary obligation.

Generally, the existence of a confidential relationship is a question of fact for the jury or the trial court. (Rieger v. Rich (1958) 163 Cal.App.2d 651, 664, 329 P.2d 770; Wilson v. Sampson (1949) 91 Cal.App.2d 453, 459, 205 P.2d 753; Estate of Llewellyn (1948) 83 Cal.App.2d 534, 562, 189 P.2d 822; Wilson v. Zorb (1936) 15 Cal.App.2d 526, 532, 55 P.2d 593; see 7 Witkin, Summary of Cal.Law (8th ed. 1974) Wills and Probate, § 112, p. 5626.) Where a legally recognized fiduciary relationship exists, however, the law infers a confidential relationship, i.e., it becomes a question of law for the court. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sime v. Malouf (1949) 95 Cal.App.2d 82, 98, 212 P.2d 946.) If the fact finder determines that a confidential relationship exists or the court determines as a matter of law that a fiduciary relationship exists, it is presumed that the one in whom trust and confidence is reposed has exerted undue influence. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Roeder v. Roeder (1953) 118 Cal.App.2d 572, 580, 258 P.2d 581.) Because a presumption is no longer independent evidence, the effect of the presumption of undue influence is to shift the burden of proof to the fiduciary. (Evid.Code, § 600, subd. (a); 1 Witkin, Cal.Procedure, [145 Cal.App.3d 384] Attorneys, supra, § 51, p. 60.) The undue influence in the case before us is, of course, relevant on the issue of consent in appellant's cause of action for battery and on the issue of justifiable reliance in her cause of action for misrepresentation.

Nevertheless, the unique facts in the case before us compel a more cautious approach in imposing on respondent, as a matter of law, the highest fiduciary standard in all his relations with appellant, social as well as legal. The existence of a confidential relationship between appellant and respondent is more properly a question of fact for the jury, or court, who can better assess whether the legal relationship was dominant or whether the parties functioned on a more equal basis in their personal relations. Thus, appellant would have the burden of proving the existence of a confidential relationship. If such a relationship were established, respondent would then have the burden of proving that consent was informed and freely given in the battery cause of action, or, in the alternative, that her reliance was unjustified in the misrepresentation cause of action. To hold otherwise would have a chilling and far- [193 Cal.Rptr. 433] reaching effect on any personal relations between an attorney and his or her clients. The possibility of a factual determination of a confidential relationship should be a sufficient warning to monitor the profession in personal or social relations with clients.

We decline to address another issue indirectly raised by appellant--one of first impression in California, at least as far as statutes, cases, and rules are concerned. She asserts that it is a breach of ethics for an attorney, particularly in a family law context, to induce a client to have sexual relations during the course of the representation, and she points out that other professions have imposed discipline on a member for sexual misconduct with a patient. (See, e.g., Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506, 181 Cal.Rptr. 797; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 123 Cal.Rptr. 563.)

We think this question is more properly directed to the State Bar of California, which so far has not publicly addressed the issue.^[11]

[145 Cal.App.3d 385]

In summary, the facts alleged in appellant's cross-complaint state causes of action for battery and deceit. Her causes of action are not barred by Civil Code section 43.5, nor by the holding in Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, or the public policy considerations underlying that decision. Although the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party. No California statute or decision bars appellant's causes of action, and decisions of other states support their viability by analogy.

The judgment is reversed. The Municipal Court of the Napa-St. Helena Judicial [193 Cal.Rptr. 434] District, County of Napa, State of California, is ordered to retransfer respondent's action to the Superior Court of the State of California, for the County of Napa, for further proceedings consistent with the views expressed herein.

FEINBERG, J., concurs.

I respectfully dissent. The cause of action appellant attempts to allege falls squarely within the prohibition of Civil Code section 43.5 which provides that "No cause of action arises for ... [p] (c) Seduction of a person over the age of legal consent."

[145 Cal.App.3d 386] The Legislature in abolishing the seduction cause of action in 1939 labeled the anti-heart balm statute as "Wrongs not actionable." Clearly the majority's assertion that "for every wrong there is a remedy" doesn't apply in the instant case.

The majority attempts to characterize appellant's cause of action as a battery or an action for deceit. But in fact, appellant was allegedly seduced by respondent's false representation of infertility. The gravamen of appellant's cause of action is the seduction, that is the act of sexual intercourse induced by appellant's false representations. The injury sustained as a result of the alleged seduction was the ectopic pregnancy and damages that flowed therefrom. Clearly if there can be no cause of action for seduction, there can be no damages for the consequences thereof.

In rejecting respondent's contention that appellant's action is barred by Civil Code section 43.5, subdivision (c), the majority argues that this is not a seduction action because "appellant complains not because her virtue was violated ... but because the sexual act ... led to an ectopic pregnancy as a result of respondent's misrepresentation." I find no support for the contention that the only damage from a seduction is loss of virtue. Surely a woman can suffer mentally and physically from an unwanted pregnancy whether it results in a live birth or is sooner terminated. All we are talking about is the damage that flows from the seduction.

I agree with the court in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 at pages 644 and 645, 164 Cal.Rptr. 618, where it states: "Despite [the] legalism [of plaintiff's claim], it is nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would encourage unwarranted governmental intrusion into matters affecting the individual's right of privacy." Should we grant appellant here a cause of action, we cannot logically foreclose a cause of action to a woman who carries the child to a live birth, or one who has a miscarriage. The possibilities are limitless. The courts should stay out of the bedroom. I would affirm the judgment.

Hearing denied; RICHARDSON, J., dissenting.

[1] In an ectopic pregnancy, the impregnated ovum develops outside the cavity of the uterus. (Stedman's Medical Dict. (3d unabridged lawyers' ed. 1972) p. 1013.) A tubal pregnancy, which occurred in the case before us, is an ectopic pregnancy where the fertilized ovum develops in the oviduct, also referred to as the Fallopian tube or tuba uterina. (Id., at pp. 903, 1014.) Respondent incorrectly refers to an ectopic pregnancy as a false pregnancy (pseudocyesis), a condition in which some of the signs and symptoms suggest pregnancy, although the woman is not in fact pregnant. (Id., at pp. 1013, 1033.)

[2] The court also granted respondent's motion to disqualify appellant's attorney.

[3] Civil Code section 43.5, enacted in 1939, provides:

"No cause of action arises for:

"(a) Alienation of affection.

"(b) Criminal conversation.

"(c) Seduction of a person over the age of legal consent.

"(d) Breach of promise of marriage."

[4] In his answer, respondent denies not only the representations, but also the acts of intercourse. We, however, consider only the allegations in the cross-complaint.

Neither appellant nor respondent directed much attention to the sufficiency of the allegations in the first amended cross-complaint. Instead, each party emphasized public policy considerations and constitutional issues, which we discuss later.

[5] Appellant does not explain what happened to her second Fallopian tube, but this is a matter of proof at trial.

[6] Civil Code section 1710 provides:

"A deceit, within the meaning of the last section, is either:

"1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

"2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

"3. The suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of fact; or,

"4. A promise, made without any intention of performing it."

[7] The Legislature has retained in Penal Code section 268 criminal sanctions for "[e]very person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character...."

[8] The so-called "wrongful birth" cases were rejected by the Stephen K. court as precedent for Stephen's claim for two reasons: "First, in none of those cases did the plaintiffs seek so radical a change in the socially accepted ideas and views of sexual conduct, family relationship, parental obligations, and legal and moral responsibility for one's own conduct as does Stephen. Secondly, in those cases the facts and the relationship of the parties-litigants are different." (Id., at p. 643, 164 Cal.Rptr. 618.) The actions have uniformly been instituted by parents against health professionals for negligence causing the birth of a child or the birth of an impaired child. For cases and discussion, see Turpin v. Sortini (1982) 31 Cal.3d 220, 225-228, 182 Cal.Rptr. 337, 643 P.2d 954; Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 643-644, 164 Cal.Rptr. 618.

[9] In response to Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, which suggested "... possible parental liability [to the child] for deciding to conceive or failing to abort a potentially defective child, the Legislature enacted section 43.6 of the Civil Code, effective January 1, 1982. Section 43.6 relieves the parents of any liability in this situation ...." (Turpin v. Sortini, supra, 31 Cal.3d 220, 228, 182 Cal.Rptr. 337, 643 P.2d 954.) Although this section does not refer to intraparental tort actions based on misrepresentations, we think it is consistent with our conclusion that such actions are contrary to public policy.

[10] Both parties raise the issue of equal protection under the law. We do not view our holding as raising that issue. A man who suffers physical injury as a result of his female partner's intentional misrepresentation will have the same right to seek legal redress as does appellant in the case at bench.

Furthermore, although the different treatment of men and women must be examined with strict scrutiny (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15-20, 95 Cal.Rptr. 329, 485 P.2d 529), such treatment may be justified where men and women are not similarly situated (Schlesinger v. Ballard (1975) 419 U.S. 498, 508, 95 S.Ct. 572, 577-78, 42 L.Ed.2d 610.) Since it is obvious that men and women are not similarly situated with regard to the risk of pregnancy, any difference in treatment of them which may be perceived in our holding is justified.

[11] The Board of Governors of the Oregon State Bar in June 1982 issued Legal Ethics Opinion No. 475, advisory only, stating that it is unethical for an attorney to be sexually involved with the client while representing the client in a divorce action, which of course may differ in degree from a post-dissolution modification proceeding. The discussion accompanying the opinion is as follows:

"DR 5-101(A) requires that a lawyer not accept employment if the exercise of his or her professional judgment on behalf of the client may be affected by his or her own personal interest, except with the consent of the client after full disclosure. DR 5-101(A) and 2-110(B)(2) and (C)(2) also imply a duty to withdraw from employment if circumstances arise whereby the attorney's personal interests may impair his or her ability to continue to exercise independent professional judgment on behalf of the client, unless the client consents to continued representation after full disclosure.

"These rules recognize that to fulfill the lawyer's responsibility of fully and adequately representing the client, it is essential that the lawyer be able to exercise independent professional judgment on behalf of the client. Where there is any question about the lawyer's ability to exercise an independent professional judgment, the client must be able to give an informed consent.

"The lawyer representing one spouse in a dissolution proceeding cannot know with certainty whether a reconciliation is possible or is in the best interest of the client, or how the possibility of a reconciliation might be affected by an affair between the lawyer and the client. Nor can the lawyer know with certainty what reaction the client's spouse would have to learning that the lawyer is having an affair during the dissolution proceedings, or how such knowledge might affect the negotiation of property rights and, if children are involved, the right to custody. See In the Matter of Lehr and Lehr, 36 Or.App. 23, 583 P.2d 1157 (1978). The potential for prejudice to the client is immense.

"Moreover, the client may be unable to give a voluntary and informed consent to continued representation. The attorney-client relationship is a fiduciary relationship, one of trust. The nature of that fiduciary relationship tends to make the client intellectually and, in many cases, emotionally dependent upon the attorney. If the client becomes involved in a love affair with the attorney, that dependency would only be increased. It would appear impossible for the lawyer to carry on such an affair with the client and maintain an independent judgment about whether the affair might harm the client's interests. See DR 7-101(A)(3). Even if the attorney were able to predict the consequences of the affair and explain them to the client, it is doubtful that the client's consent to the attorney's continued representation could ever be deemed truly informed and voluntary...."

[601 N.E.2d 293] [235 Ill.App.3d 44] [175 Ill.Dec. 896] Brian Dean Shore, argued, Guyer & Enichen, Rockford, for Anthony Topps.

Michael T. Caldwell, argued, Caldwell, Berner & Caldwell, Woodstock, for Phillip Ferraro.

Plaintiff, Anthony Topps, filed a one-count complaint in the circuit court of McHenry County alleging negligence against defendant, Phillip Ferraro. The trial court granted defendant's motion for summary judgment, and plaintiff filed this timely appeal. The sole issue presented for review is whether the trial court erred in granting summary judgment in favor of defendant. We reverse and remand the cause.

The deposition testimony of the parties reveals the following facts. On June 28, 1987, plaintiff and defendant attended a social gathering at the home of a mutual friend. Shortly after the arrival of defendant and a female companion, defendant encountered plaintiff in the living room of the house and asked plaintiff if he would step outside for a moment to discuss something. Plaintiff, at that moment, did not feel challenged or threatened and agreed to step outside. Once outside, defendant asked plaintiff about earlier statements allegedly made by plaintiff about defendant's girlfriend. Within a short period of time, the conversation grew heated and argumentative.

[235 Ill.App.3d 45] In his deposition, plaintiff stated that he informed defendant that he would speak to him later after defendant calmed down. He said that he turned around and felt defendant touch his left shoulder, that the next thing he could recall was waking up one to two minutes later in the bushes with his left eye feeling sore, and that he smelled a strong odor of blood. Plaintiff stated that he could not recall any other details from the moment he turned around until he regained consciousness. He further stated that he did not remember whether he pushed or shoved the defendant.

At his deposition, defendant stated that after the argument became heated plaintiff shoved him in the shoulder, and he responded by punching plaintiff in the face, contacting plaintiff's left eye. Plaintiff then fell to the ground, stating that he required medical assistance. Defendant further testified:

"A. [Defendant]: After talking and turning into an argument he pushed me on the shoulder, and once he hit me--well, pushed me, I hit him in the face.

* * * * * *

Q. So you said your reaction was to hit at him?

A. Well, that's just--I mean it wasn't something I thought about. Once he pushed me, I hit him, so it wasn't really any time.

Q. Is it your testimony at the time that you--that he pushed you it was your intent to hit him?

A. What?

Q. At the time--

A. He pushed me.

Q. It was your intent to hit him?

A. It wasn't a thought out thing. It was just all of a sudden I came up and hit him.

* * * * * *

Q. When you made contact with [plaintiff], what was your intention?

A. There was no intention. It was a matter--it was a matter of reflexes. I don't know what it was because really there was no time to think about it. Once he pushed me, I didn't think about he pushed me, hit him. It was just a matter of he pushed me and I hit him.

Q. Did you mean to hit him?

A. That was not--it wasn't my intention to bring him out there to go beat him up.

Q. I am saying at the time you did make contact?

[601 N.E.2d 294] [235 Ill.App.3d 46] [175 Ill.Dec. 897] A. Yes. There was no time. I didn't even think about it or anything. It was a matter of reaction."

The record does not reflect any additional testimony or factual evidence as to the altercation.

Plaintiff was treated for his eye injury at the Crystal Lake Ambutal and released. Plaintiff testified that after the swelling subsided four days later he observed that the entire white portion of his left eye was red and that a portion of his vision was blocked. Plaintiff sought further treatment from an eye specialist. Plaintiff testified that at the time of his deposition, which was approximately three years after he sustained the injury, his field of vision was still impaired and that his visual acuity had further deteriorated.

In his one-count complaint plaintiff alleged:

"4. * * * Defendant, Phillip Ferraro, was guilty of one or more of the following negligent acts:

(a) Extended his arm in a negligent matter [sic ] without due regard for the presence of others.

(b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact.

(c) Failed to keep proper lookout for the Plaintiff.

5. That due to the foregoing negligent acts or omissions of the Defendant, Phillip Ferraro, the Plaintiff, Anthony Topps, was injured * * *." (Emphasis added.)

Defendant moved for summary judgment and attached copies of plaintiff's and defendant's discovery depositions. Defendant did not file a motion to strike or dismiss, nor did defendant file an affirmative defense in the nature of self-defense. Plaintiff filed no response to defendant's motion for summary judgment. The trial court granted defendant's motion, and plaintiff now appeals.

Plaintiff contends that an issue of material fact exists as to the "degree" of defendant's culpability and that the factual evidence presented in support of defendant's motion did not establish free and clear from doubt that defendant's conduct was other than negligent. Plaintiff focuses on defendant's professed state of mind at the time he struck plaintiff and argues that, because defendant was unable to provide an explanation why he struck plaintiff, a trier of fact could infer that defendant's conduct was negligent as opposed to intentional. Plaintiff further argues that defendant's testimony indicates that defendant negligently failed to contemplate the possible or probable consequences of his act in striking plaintiff. Defendant responds that the record clearly and unequivocally establishes that his actions were [235 Ill.App.3d 47] intentional and, therefore, no issue of material fact exists as to whether his conduct could be characterized as negligent.

Defendant argues that his intentional act precludes a grant of judgment to plaintiff on the issue of negligence by arguing the law relating to an intentional tort. However, defendant does not concede liability for either negligence or intentional tort because he claims self-defense. Defendant has failed to cite any law as to why an unreasonable belief in the need for self-defense is neither negligence nor an intentional tort. Defendant's argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent. Our independent research has disclosed two cases which allow recovery in negligence for such "intentional" acts. Blackburn v. Johnson (1989), 187 Ill.App.3d 557, 135 Ill.Dec. 200, 543 N.E.2d 583; Wegman v. Pratt (1991), 219 Ill.App.3d 883, 894, 162 Ill.Dec. 221, 579 N.E.2d 1035.

In this case, plaintiff's complaint alleged the following negligent acts by defendant: "(a) Extended his arm in a negligent matter [sic ] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff." To state a legally sufficient cause of action in either simple or willful and wanton negligence, plaintiff must have alleged sufficient facts to show defendant had a duty to plaintiff, that he breached [601 N.E.2d 295] [175 Ill.Dec. 898] such duty, and that an injury proximately resulted from that breach. (Wood v. Village of Grayslake (1992), 229 Ill.App.3d 343, 349, 170 Ill.Dec. 590, 593 N.E.2d 132.) The fact that defendant stated in his deposition that he intended to punch plaintiff neither mystically transmutes the allegations in plaintiff's complaint to an intentional tort nor precludes recovery in negligence.

The arguments of the parties set forth above are primarily due to the fact that the defendant apparently has insurance where coverage is dependent on the nature of the acts committed by defendant. The plaintiff has attempted to state a cause of action with facts that he believes will enable him to collect any judgment he might obtain. The defendant, on the other hand, has attempted to defend the action in such a way that no conflict of interest would arise between the defendant and his insurer. It is in this context that we consider whether the trial court erred in granting defendant's motion for summary judgment.

When reviewing the trial court's grant of summary judgment, the reviewing court must first determine whether the trial court erred in its ruling that no genuine issue of material fact existed. (Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), [235 Ill.App.3d 48] 170 Ill.App.3d 244, 248, 120 Ill.Dec. 465, 524 N.E.2d 230.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Balla v. Gambro, Inc. (1991), 145 Ill.2d 492, 508, 164 Ill.Dec. 892, 584 N.E.2d 104.) If no issue of material fact has been raised, the court must determine whether judgment was correctly entered as a matter of law. (Briarcliffe, 170 Ill.App.3d at 249, 120 Ill.Dec. 465, 524 N.E.2d 230.) Thus, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. Shull v. Harristown Township (1992), 223 Ill.App.3d 819, 824, 166 Ill.Dec. 142, 585 N.E.2d 1164; Quinton v. Kuffer (1991), 221 Ill.App.3d 466, 471, 164 Ill.Dec. 88, 582 N.E.2d 296.

Contrary to a section 2-615 motion to dismiss, summary judgment should not be used to determine whether plaintiff's complaint sets forth a legally sufficient cause of action. Rather, a motion for summary judgment "almost necessarily assumes a cause of action has been stated." (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 406, 312 N.E.2d 605.) If defendant wished to contest the sufficiency of plaintiff's complaint, he should have first filed a motion to strike and/or dismiss. Only when a legally sufficient cause of action had been stated should defendant have challenged the cause of action by a motion for summary judgment or his affirmative defense of self-defense. Magnuson v. Schaider (1989), 183 Ill.App.3d 344, 355, 131 Ill.Dec. 753, 538 N.E.2d 1309.

The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill.2d 404, 416, 164 Ill.Dec. 622, 583 N.E.2d 538; Quinton v. Kuffer (1991), 221 Ill.App.3d 466, 470, 164 Ill.Dec. 88, 582 N.E.2d 296.) At the summary judgment stage, contrary to the dissent contained herein, the plaintiff is not required to establish his case as he would at trial. Instead, the plaintiff must present some factual basis that would arguably entitle him to a judgment in his favor. (West v. Deere & Co. (1991), 145 Ill.2d 177, 182, 164 Ill.Dec. 122, 582 N.E.2d 685.) Plaintiff herein alleged his right to a cause of action based upon a negligence theory of liability and has neither alleged intent nor lack thereof. He is entitled to the benefit of every relevant fact necessary to succeed on the theory he has alleged. We find that the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is a genuine issue of material fact regarding defendant's negligence regardless of the issue of intent or lack thereof. (Blackburn, 187 Ill.App.3d at 560, 135 Ill.Dec. 200, 543 N.E.2d 583; Wegman, 219 Ill.App.3d at 894, 162 Ill.Dec. 221,579 [601 N.E.2d 296] [175 Ill.Dec. 899] N.E.2d 1035.) Accordingly, the trial court erred in ruling that no issue of material fact existed as to the nature of defendant's conduct as reasonable [235 Ill.App.3d 49] minds could find that the defendant was negligent in hitting the plaintiff.

For the foregoing reasons, we reverse the order of the circuit court of McHenry County granting judgment in favor of defendant, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, J., concurs.

I respectfully dissent because I believe that the majority may have been led to an incorrect result through a misunderstanding of defendant's argument. The majority states that "[d]efendant's argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent " (emphasis in original) (235 Ill.App.3d at 47, 175 Ill.Dec. at 897, 601 N.E.2d at 294) and that defendant's admission in his deposition that he intended to punch plaintiff does not transform plaintiff's allegations into an intentional tort. Additionally, the majority questions why defendant failed to file a motion to strike and/or dismiss and states that a motion for summary judgment should not be used to determine whether plaintiff's complaint sets forth a cause of action. While I agree with this well-settled rule, it fails to address defendant's argument here. Defendant has not challenged plaintiff's complaint for failure to state a cause of action; rather, his focus is upon the failure of the plaintiff to provide evidence which would support the complaint's specific allegations of negligence. I understand defendant's position to be that negligence is a theory of action which is separate and distinct from intentional tort and that, although plaintiff has elected to proceed on a specific theory of negligence only, the evidence before the trial court presented no issue of material fact as to whether defendant's conduct could be characterized as negligent within the allegations of the complaint.

Plaintiff failed to offer any evidence in contradiction of the deposition testimony submitted in support of defendant's motion for summary judgment. It is well settled that facts contained within affidavits in support of a motion for summary judgment and uncontradicted by other factual evidence are admitted and considered true (Heidelberger v. Jewel Cos. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601) and that discovery depositions may be utilized in support of a summary judgment motion to the [235 Ill.App.3d 50] same extent as affidavits. 134 Ill.2d R. 212(a)(4); Carter v. Dunlop (1985), 138 Ill.App.3d 58, 63, 92 Ill.Dec. 418, 484 N.E.2d 1273.

It is true, however, that if reasonable persons could draw divergent inferences from the undisputed facts, summary judgment should be denied (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304) and that a court must construe the deposition testimony strictly against the defendant-movant and liberally in favor of the plaintiff and enter summary judgment only when the right of the defendant is free and clear from doubt (Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill.2d 121, 130, 142 Ill.Dec. 192, 552 N.E.2d 783).

Intent, as defined within the context of tort liability, is not necessarily a hostile intent, or a desire to do any harm; rather, it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Cowan v. Insurance Co. of North America, (1974) 22 Ill.App.3d 883, 893, 318 N.E.2d 315, citing W. Prosser, Handbook of the Law of Torts § 8, at 31 (4th ed. 1971).) Comment b of section 8A of the Restatement (Second) of Torts provides:

"All consequences which the actor desires to bring about are intended * * *. * * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." [601 N.E.2d 297] [175 Ill.Dec. 900] ." (Restatement (Second) of Torts § 8A, Comment b, at 15 (1965).)

The term "intent" is commonly used "to describe the purpose to bring about stated physical consequences " and is concerned with the consequences of the act. (Emphasis in original.) (W. Keeton, Prosser & Keeton on Torts § 8, at 35 (5th ed. 1984).) Motive focuses on the subjective rationale that inspires the act and the intent. W. Keeton, Prosser & Keeton on Torts § 8, at 35 (5th ed. 1984).

It is recognized that motive and intent are related states of mind and that confusion sometimes exists as to their precise interaction in the context of tort liability. In analyzing the circumstances of the present incident, however, I conclude that defendant's inability or failure in his deposition to specifically articulate his reason for striking plaintiff does not provide support for any inference that he acted negligently. Plaintiff's argument confuses motive with intent. Defendant's deposition testimony does not evidence his lack of intent; rather, it demonstrates his subjective reasoning, or lack thereof, as to why he engaged in an act of striking plaintiff. Although defendant testified that "it wasn't something he thought about" and that it was a matter of reflexes, he clearly and unequivocally stated that he struck plaintiff. The only reasonable interpretation of the evidence is that defendant [235 Ill.App.3d 51] struck out intentionally in response to allegedly being pushed by plaintiff.

Additionally, there is no evidence which suggests an alternative inference that defendant did not know or was substantially uncertain of the consequences of his act of striking plaintiff. Plaintiff has failed to respond to the motion for summary judgment by submitting facts which would raise an alternative inference (see Randle v. Hinckley Parachute Center, Inc. (1986), 141 Ill.App.3d 660, 661, 96 Ill.Dec. 5, 490 N.E.2d 1041), and he cannot rely upon mere conjecture or surmise as being sufficient to raise a genuine issue of negligence (see Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill.App.3d 95, 101, 82 Ill.Dec. 215, 468 N.E.2d 477). I conclude that the testimony relating to defendant's motive is insufficient to raise an issue of material fact as to whether defendant's conduct was negligent as opposed to intentional.

Plaintiff submits an alternative theory by which a trier of fact might characterize defendant's conduct as negligence. He argues that the facts might be interpreted as showing that defendant made an unreasonable decision to act intentionally in defense of his person against plaintiff's advances. A determination of negligence, it is asserted, could be predicated upon the defendant's faulty decision to act intentionally. Although I agree with the majority that under certain circumstances this has been recognized to be a viable theory of negligence (see Wegman v. Pratt (1992), 219 Ill.App.3d 883, 162 Ill.Dec. 221, 579 N.E.2d 1035; Blackburn v. Johnson (1989), 187 Ill.App.3d 557, 135 Ill.Dec. 200, 543 N.E.2d 583), it has no applicability to assist plaintiff in the present case because his complaint does not allege any such theory of negligence. On the contrary, the complaint describes defendant's "negligent acts" as follows: "(a) Extended his arm in a negligent matter [sic ] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff." In contrast, both Wegman and Blackburn, cited by the majority, involved complaints which specifically alleged a theory of negligent decision to use force in defense of person. (Wegman, 219 Ill.App.3d at 895, 162 Ill.Dec. 221, 579 N.E.2d 1035; Blackburn, 187 Ill.App.3d at 560, 135 Ill.Dec. 200, 543 N.E.2d 583.) Considering the plain and ordinary meaning of the present allegations, coupled with plaintiff's failure to respond to the motion for summary judgment by arguing any alternative theory of interpretation, I conclude that the trial court was correct in its ruling that no issue of material fact existed as to the nature of defendant's conduct.

Having determined that no issue of material fact exists, the next consideration is whether the trial court, as a matter of law, properly granted summary judgment in favor [601 N.E.2d 298] [175 Ill.Dec. 901] of defendant. Defendant contends [235 Ill.App.3d 52] that an uncontroverted showing of intentional conduct entitled him to summary judgment.

Intentional torts and negligence are distinct causes of action. Contrary to plaintiff's contention, differing theories of tort liability are distinguished, not by their difference in degree of culpability, but, rather, they are distinguished on the basis of their qualitative differences in kind. (See Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 450-52, 170 Ill.Dec. 633, 593 N.E.2d 522 (qualitative differences between negligence and wilful and wanton conduct preclude their comparison for comparative fault purposes).) Moreover, it is the presence of the recognized elements of negligence and not the absence of intentional or reckless conduct which determines the right to maintain a negligence cause of action. In ruling upon a motion for summary judgment, the court must consider the specific allegations of the complaint. A complaint must contain a plain and concise statement of the plaintiff's cause of action. (Ill.Rev.Stat.1991, ch. 110, par. 2-603(a).) It should sufficiently define the issues and reasonably inform the defendant of the claim which he or she is called upon to meet. (Ill.Rev.Stat.1991, ch. 110, par. 2-612.) Plaintiff, as the master of his complaint, was free to choose his theory of action, and a court's determination of whether plaintiff is entitled to recovery is based upon the evidence adduced in support of his chosen theory.

If, from the evidence before the court, a plaintiff has failed to establish an element of his cause of action as alleged, summary judgment for the defendant is proper. (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304.) Plaintiff alleged his right to a cause of action based upon a specifically identified negligence theory of liability and was entitled to the benefit of every relevant fact necessary to succeed on that theory. His failure to provide sufficient evidence necessary to withstand defendant's summary judgment motion, however, required the trial court to determine, as a matter of law, that plaintiff was not entitled to maintain his cause of action for negligence.

For the foregoing reasons, I would affirm the circuit court's order granting summary judgment in favor of defendant.

65 Neb. 889
91 N.W. 880

Supreme Court of Nebraska.

Oct. 9, 1902.

Syllabus by the Court.

1. Petition examined, and held good, as against a demurrer ore tenus.

2. When the owner of dangerous premises knows, or has good reason to believe, that children, so young as to be ignorant of the danger, will resort to such premises, he is bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dangerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take; approving Railroad Co. v. Bailey, 9 N. W. 50, 11 Neb. 336.

3. In such cases, in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relation such precautions bear to the beneficial use of the premises. If, under all the circumstances, the owner omit such precautions as a man of ordinary care and prudence would take, under like circumstances, he is guilty of negligence.

4. Ordinarily, the question of negligence is one of fact for the jury, to be determined from all the facts and circumstances shown in evidence, and it is error for the court to group certain facts in evidence together, and instruct the jury that they constitute negligence.

5. In an action, by an infant in the care and custody of its father, for personal injuries, it is error to instruct the jury that his lessened earning capacity is an element of damages, unless it be limited to the period from which he would be entitled to his earnings.

6. An instruction authorizing the jury, in arriving at a verdict, to bring to bear their own knowledge, observation, and experience in the business affairs of life is erroneous when not limited to such knowledge, observation, and experience as they share in common with men generally.

7. An instruction relative to the damages to be awarded the plaintiff, if any, closed with the statement that they should not exceed a specific amount, naming the amount claimed in the petition. Held, that the practice of thus referring to the amount claimed should be discountenanced.

8. Instructions tendered examined, and held properly refused.

9. Rulings on the admission of evidence examined, and held not erroneous.

Commissioners' opinion. Department No. 3. Error to district court, Merrick county; Thompson, Judge.

Action by Leo Krayenbuhl, by his next friend, against the Chicago, Burlington & Quincy Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Reversed. [91 N.W. 880] J. W. Deweese, F. E. Bishop, and John Patterson, for plaintiff in error.

Mathew Gering and Michael O'Donahue, for defendant in error.

This action was brought on behalf of Leo Krayenbuhl, whom we shall hereafter call the plaintiff, by his next friend, against the Chicago, Burlington & Quincy Railroad Company to recover for personal injuries received by the plaintiff while playing on a turntable belonging to the defendant.

It sufficiently appears from the evidence that on and prior to the 20th day of October, 1895, the defendant operated a line of railroad, which extended through the village of Palmer, at which point it maintained a passenger depot, roundhouse, coalhouse, water tank, and turntable. A few rods northwest of the depot the road branched, one branch taking a westerly and the other a northwesterly course. The turntable was situated between those two branches, at a point about 1,600 feet from the depot, and about 100 feet from each branch, and a track extended to it from the point of divergence of the two branches. A path or footway, beginning some distance northwest of the turntable, extended in a southeasterly direction, passed within about 70 feet of it, and crossed the [91 N.W. 881] track at the south. This path was in common use, not only by the members of the family to which the plaintiff belonged, but by the public generally, and there was no fence between it and the turntable. The turntable was provided with a movable bolt, which by means of a lever could be thrown into a socket in the surrounding framework, thus holding the turntable in position. Provision was also made for locking it with a padlock. The rules of the defendant in force at the time required the foreman of the roundhouse, or in his absence the station agent, to keep the turntable locked when not in use; but there is considerable evidence to the effect that this rule was frequently disregarded, and that, owing to the looseness of one of the staples used in connection with the lock, even when thus fastened, it could be unfastened by young children without much difficulty. The plaintiff's father was in the employ of the defendant as section foreman, and, with his family, occupied a small house on the right of way near the station, within about 30 feet of the track, and about 1,600 feet from the turntable. Another family resided on the right of way, a few rods from the turntable. The two families visited back and forth, using the right of way for a path. The plaintiff's father kept a cow, which was pastured on the right of way, sometimes near the turntable, and it appears from the evidence that his children drove it back and forth on the right of way as occasion required. There is evidence tending to show that it was the common practice for the children of the family and other children in the neighborhood to resort to the coalhouse, roundhouse, and turntable, and to amuse themselves by revolving the turntable, and riding on it while it was in motion, and that this practice was known to the defendant, who permitted it without protest.

On the 20th day of October, 1895, in the absence of his parents, the plaintiff,--he was then four years of age,--in company with some other members of the family, the oldest of whom was eleven years old, and some other children, the oldest of whom was fourteen, were playing with a push car, moving it up and down on the railroad track. The agent in charge of the station joined them, and rode a short distance on the car. He then left them, and went to his rooms in the station. The children continued to push the car, and finally reached the turntable. There is evidence sufficient to sustain a finding that they found the turntable unlocked and unguarded, but the evidence is conflicting on that point. The plaintiff and some of the other children got on the turntable, while two of the others set it in motion. While it was in motion the plaintiff's foot was caught between the rails, and severed at the ankle joint. The injury thus sustained is that for which damages is sought in this action. A trial was had to a jury, which resulted in a verdict and judgment for the plaintiff. The defendant brings error.

The first question raised is that the petition does not state facts sufficient to constitute a cause of action. The grounds of this objection, as stated in the defendant's brief, are as follows: “It does not allege the authority of any agent of the defendant to invite the plaintiff upon its turntable, or any facts which constitute such express invitation. It does not allege the characteristics either of location or construction of the table, which of themselves render the table an invitation to the danger.” The petition is too long to set out at length. We think it will suffice to say that the allegations in these respects are that the plaintiff was induced by other small children, with the knowledge and consent of the defendant, its agents and servants, and by the invitation of the defendant, to come to and about the turntable. On the face of the petition, this is an allegation of an invitation by the defendant. If the plaintiff were invited by the defendant, he was invited by some agent of the defendant having authority in the premises. The allegation in that regard is sufficient. It is true the facts constituting such invitation are not set forth, nor do we deem it necessary that they should be for the purposes of the objection under consideration, which was first made by an objection to the introduction of any testimony, on the ground that the facts stated in the petition did not constitute a cause of action.

The question to which counsel have directed the greater portion of their arguments is whether the facts in this case are sufficient to sustain the verdict. On this question we have been favored with an exhaustive discussion of what is commonly known as the “doctrine of the Turntable Cases,” which applied to the facts in this case, would sustain the verdict. The leading case in support of this doctrine is Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. The doctrine was reaffirmed by the same court in Railroad Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, and was expressly approved by this court in Railroad Co. v. Bailey, 11 Neb. 336, 9 N. W. 50, and was approved and applied in the following among other cases: Barrett v. Pacific Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186;Keffe v. Railway Co., 21 Minn. 207, 18 Am. Rep. 393;Twist v. Railroad Co. (Minn.) 39 N. W. 402, 12 Am. St. Rep. 626;Railway Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203;Navigation Co. v. Hedrick, 1 Wash. 446, 25 Pac. 335, 22 Am. St. Rep. 169; Railroad Co. v. Skidmore (Tex. Civ. App.) 65 S. W. 215;Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755;Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507;Ferguson v. Railway Co., 75 Ga. 637;Nagel v. Railway Co., 75 Mo. 653, 42 Am. Rep. 418.

The doctrine, as we gather it from the cases cited, is that where a turntable is so [91 N.W. 882] situated that its owner may reasonably expect that children too young to appreciate the danger will resort to it, and amuse themselves by using it, it is guilty of negligence for a failure to take reasonable precautions to prevent such use. It has not been permitted to pass as law unchallenged. On the contrary, it has been expressly repudiated in many cases, among which are the following: Walsh v. Railroad Co. (N. Y.) 39 N. E. 1069, 27 L. R. A. 724, 45 Am. St. Rep. 615;Daniels v. Railroad Co., 154 Mass. 349, 28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253;Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396;Railroad Co. v. Reich (N. J. Err. & App.) 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727. It has been criticised in others, among which are Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, and Dobbins v. Railroad Co. (Tex. Sup.) 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856. The latter case would seem to throw some doubt on the position of the courts of Texas in regard to the doctrine in question, but the case of Railroad Co. v. Skidmore, supra, appears to be the latest expression of the court on the question.

The defendant insists that the doctrine is unsound, and asks that it be repudiated by the court, and that the case of Railroad Co. v. Bailey, supra, be overruled. The argument in this behalf rests on the proposition that the owner of dangerous premises owes no active duty to trespassing children. The assumption that the plaintiff was a trespasser might well be questioned. The right of way was his home and playground; it was where his father performed his daily labors; it was used as a path and for other purposes by the family. But, as the duty of the owner of dangerous premises to infant trespassers is raised by other assignments, it will shorten this opinion to allow the assumption to pass unchallenged. The proposition is not universally true, as is clearly shown, we think, by Sedgwick, J., in Tucker v. Draper, 62 Neb. 66, 86 N. W. 917, wherein he says: “* * * There may be, and often are, circumstances under which one owes some active duty to a trespasser upon his premises. If a man willfully lies down upon a railroad track, the engineer must not wantonly run his engine over him. One may not set a snare or spring gun for trespassers, and, knowing that some stranger had placed the snare or spring gun, if he wantonly allows it to remain he will be responsible for the consequences. A well may be so contrived as to act as a dangerous trap, and one who allows it so to remain upon his premises will, under some circumstances, be liable. If adults, or children of such age as to ordinarily be capable of discerning and avoiding danger, are injured while trespassing upon the premises of another, they may be without remedy, while under similar circumstances children of three or four years of age would be protected. If I know that there is an open well upon my premises, and know that children of such tender years as to have no notion of their danger are continually playing around it, and I can obviate the danger with very little trouble to myself, and without injuring the premises or interfering with my own free use thereof, I owe an active duty to those children, and if I neglect that duty, and they fall into the well and are killed, it is through my negligence. I cannot urge their negligence as a defense, even though I have never invited or encouraged them, expressly or impliedly, to go upon the premises.”

The language amounts to a reaffirmance of the doctrine of the turntable cases, and, to our minds, suggests the true principle upon which cases of this character rest; that is, that where the owner of dangerous premises knows, or has good reason to believe, that children so young as to be ignorant of the danger will resort to such premises he is bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dangerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take. At first sight, it would seem that the principle, thus stated, is too broad, and that its application would impose unreasonable burdens on owners, and intolerable restrictions on the use and enjoyment of property. But it must be kept in mind that it requires nothing of the owner that a man of ordinary care and prudence would not do of his own volition, under like circumstances. Such a man would not willingly take up unreasonable burdens, nor vex himself with intolerable restrictions.

It is true, as said in Loomis v. Terry, 17 Wend. 496, 31 Am. Dec. 306, “the business of life must go forward”; the means by which it is carried forward cannot be rendered absolutely safe. Ordinarily, it can be best carried forward by the unrestricted use of private property by the owner; therefore the law favors such use to the fullest extent consistent with the main purpose for which, from a social standpoint, such business is carried forward, namely, the public good. Hence, in order to determine the extent to which such use may be enjoyed, its bearing on such main purpose must be taken into account, and a balance struck between its advantages and disadvantages. If, on the whole, such use defeats, rather than promotes, the main purpose, it should not be permitted; on the other hand, if the restrictions proposed would so operate, they should not be imposed. The business of life is better carried forward by the use of dangerous machinery; hence the public good demands its use, although occasionally such use results in the loss of life or limb. It does so because the danger is insignificant, when weighed against the benefits resulting from the use of such machinery, and for the same reason demands its reasonable, most effective, [91 N.W. 883] and unrestricted use, up to the point where the benefits resulting from such use no longer outweigh the danger to be anticipated from it. At that point the public good demands restrictions. For example, a turntable is a dangerous contrivance, which facilitates railroading; the general benefits resulting from its use outweigh the occasional injuries inflicted by it; hence the public good demands its use. We may conceive of means by which it might be rendered absolutely safe, but such means would so interfere with its beneficial use that the danger to be anticipated would not justify their adoption; therefore the public good demands its use without them. But the danger incident to its use may be lessened by the use of a lock which would prevent children, attracted to it, from moving it; the interference with the proper use of the turntable occasioned by the use of such lock is so slight that it is outweighed by the danger to be anticipated from an omission to use it; therefore the public good, we think, demands the use of the lock. The public good would not require the owner of a vacant lot on which there is a pond to fill up the pond or inclose the lot with an impassable wall to insure the safety of children resorting to it, because the burden of doing so is out of proportion to the danger to be anticipated from leaving it undone. Richards v. Connell, 45 Neb. 467, 63 N. W. 915. But where there is an open well on a vacant lot, which is frequented by children, of which the owner of the lot has knowledge, he is liable for injuries sustained by children falling into the well, because the danger to be anticipated from the open well, under the circumstances, outweighs the slight expense or inconvenience that would be entailed in making it safe. Tucker v. Draper, supra.

Hence, in all cases of this kind in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises. The nature of the precautions would depend on the particular fact in each case. In some cases a warning to the children or the parents might be sufficient; in others, more active measures might be required. But in every case they should be such as a man of ordinary care and prudence would observe under like circumstances. If, under all the circumstances, the owner omits such precautions as a man of ordinary care and prudence, under like circumstances, would observe, he is guilty of negligence. We are fully satisfied that the principle under consideration is sound, and that its application would not operate oppressively on the owner. We see no good reason for receding from the position already taken by this court in cases of this character.

The defendant tendered the following instruction: “The jury are instructed that in this case the plaintiff claims, in substance, that the railroad company was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured, and that the turntable in question was a machine that was naturally enticing to children, and that children were tempted to play on and about this turntable. On this point the court instructs you that the law is that the railroad company has the right to the exclusive use of its own grounds and turntable and other machinery, the same as any other person has the exclusive right and use of his own property and premises, and that the company was under no obligations to keep its turntable in such a condition that it would be safe and convenient for children to play upon and to use as a plaything; and the court instructs you that the defendant was under no obligation to keep a watchman at and about said turntable for the purpose of excluding children therefrom; that the company was only required to exercise reasonable care in the placing and using of said turntable, and have the same fitted with such appliances as would make it reasonably safe and convenient for the purpose for which it was intended.” The court refused the instruction as tendered, and modified it by omitting the concluding clause, and inserting the following: “But the company was required to exercise reasonable care in the placing and fastening of the turntable and having the same fitted with such appliances as would make it reasonably safe in the situation where it was placed, under the circumstances as disclosed in this case.”

The instruction as thus modified was given. The complaint of the refusal of the court to give the instruction as tendered is covered by what has been said on the sufficiency of the facts to sustain the verdict. But the defendant insists that the instruction as modified is erroneous, in that it submitted to the jury the proper construction and location of the turntable. Taking the instruction as a whole, we do not think it admits of that construction. The opening sentence informs the jury of the nature of the plaintiff's claim; that such claim is that the defendant “was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured.” In paragraph 7 of the instructions the jury were told that the action rests on the alleged negligence of the defendant in not keeping the turntable guarded, locked, or properly fastened. In the fifteenth paragraph they were told that the defendant “had a right to have and use the turntable in the carrying on of its business as a railroad company.” The rejected clause of the instruction under consideration, as tendered by the defendant, uses the word “placing,” the only word used in the [91 N.W. 884] substituted clause that could be construed as a reference to the location or construction of the turntable. From these considerations, we think the clause complained of has no reference to the location nor original construction of the turntable, but refers rather to the condition in which it was to be kept or left when not in use. In the light of the entire charge, the jury could hardly have understood it to refer to the location or construction of the turntable.

Another instruction tendered by the defendant is as follows: “If the jury find from the evidence that the turntable in question was a ponderous and powerful machine when set in motion, and that according to its mechanism it would turn easily, and when turned, even for a small space, it would accumulate a force of momentum of great power; and if you further find that the young people and children meddling with said turntable at the time of the injury complained of worked upon the levers of said machine back and forth through the small space in which the turntable could be moved, even when the fastenings were in proper place and held the machine; and that by the motion and momentum of the machine set in motion by the young people at the levers the fastenings became loosened so as to permit the turntable to go around,--then you are instructed that under this state of facts the plaintiff could not recover, and your verdict should be for the defendant.” It was refused, and its refusal is now assigned as error. The instruction entirely omits the question of due care. There was evidence to the effect that the lock used for the turntable was little, if any, obstacle to the use of the turntable by children, because one of the staples was loose, and could be easily removed. The instruction, if given, would have justified a finding of due care, however carelessly the turntable was fastened. That would have been erroneous. The instruction, in our opinion, was properly refused.

The court on its own motion gave the following instruction as part of the charge to the jury: “But if you find, from a preponderance of the evidence, that the turntable in question was a dangerous machine, and the defendants did know, or had reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accident, this would be evidence of negligence, and would be answerable for damages caused thereby to the children of tender years, and who did not possess sufficient knowledge or understanding to know the danger or dangerous character of such turntable. However, the defendants are not insurers of the limbs of those, whether adults or children, who may resort to their grounds, and there are many injuries continually happening which involve no pecuniary liability to any one.” The defendant contends that there is no evidence to support the hypothesis that the defendant took no means to keep the children away, and no means to prevent the accident. The evidence of at least one of the children who was present at the time, and who assisted in revolving the turntable at the time, is to the effect that it was not locked, but yielded at once to their efforts to move it. There is other evidence to the same effect. Another witness testifies that it was never locked. As to the means taken to keep the children from the turntable, a considerable portion of the testimony offered on behalf of the plaintiff tends to show that no such means were taken. The defendant contends that the location of the turntable, at a distance from the town, was, in itself, a means of protection But the instruction has reference to circum stances as they existed at the time of the accident. The location of the turntable, as a means of protection, is important only as tending to show the improbability of children resorting to it, and that the defendant could not reasonably be expected to anticipate that they would do so. It becomes immaterial when, according to the hypothesis, the defendant knew, or had good reason to believe, that children would resort to the turntable and be injured by it. The instruction, we think, finds ample basis in the evidence.

Another criticism urged against this instruction is that it invades the province of the jury, in that it charges that if the defendant, under the circumstances stated, took no means to keep the children away, and no means to prevent the accident, it would be answerable in damages. The defendant insists that the question of negligence was one for the jury, and that it was not within the province of the court to say, in effect, that a certain state of facts constituted negligence. We are inclined to think this criticism is just. From the wording of the instruction, the jury could hardly draw any other conclusion than that, if they found the facts specifically stated therein, the verdict should be for the plaintiff; in other words, that such facts were to be considered by them, not only as evidence of negligence, but as negligence per se. It has been repeatedly held by this court that it is erroneous to single out and state a group of facts, and inform the jury that if such facts are found it establishes the existence of negligence. The question of negligence is seldom one of law, and the facts enumerated in the instruction should have been considered by the jury as evidence of negligence, to be considered in the light of all the other facts and circumstances shown in evidence. To thus single out and state a group of facts has been held by this court to amount to an improper comment on questions of fact by the court. We think the instruction was erroneous, and that the following cases support that view: [91 N.W. 885] Railway Co. v. Baier, 37 Neb. 235, 55 N. W. 913;Railway Co. v. Morgan, 40 Neb. 604, 59 N. W. 81; Railroad Co. v. Oleson, 40 Neb. 889, 59 N. W. 354;Village of Culbertson v. Holliday, 50 Neb. 229, 69 N. W. 853.

The nineteenth and twentieth paragraphs of the charge to the jury related to the measure of damages, and are as follows:

“(19) The jury are instructed if from the evidence in the case, and under the constructions of the court, the jury shall find the issues for the plaintiff, and that the plaintiff has sustained damages, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.

(20) The jury are instructed that if, on the evidence in the case and under the instructions of the court, they find the issue in favor of the plaintiff, and that the plaintiff has sustained damages, as charged in the petition, then in assessing such damages they should take into consideration the age, expectancy of life of the plaintiff, his inability to labor as shown by the evidence, his mental anguish and bodily pain, if any has been shown, and whether or not the injury to the plaintiff is permanent. You should take all these elements into consideration, and allow him such a sum as will be fair and just compensation for the injuries sustained, not exceeding the sum of $25,000. But you cannot allow him exemplary damages; that is, damages by way of punishment of the defendants.”

One objection urged against these instructions is that the jury were required to consider the facts and circumstances in evidence “in connection with their own knowledge, observation, and experience in the business affairs of life.” It is not only proper, but necessary, that, in arriving at a verdict, the jury should make use of such knowledge as they possess in common with other men. But the instruction imposes no such limitation. We think the jury might have fairly inferred from it that they were required to bring to bear any special knowledge which they might have on the subject, or the result of their observations and experience in like cases, which would be manifestly improper.

Another objection to the instructions in this behalf is that the jury were required to take into account the plaintiff's inability to labor as an element of damage. The defendant insists that as the plaintiff is a minor, in the custody of his father, who is charged with his support and entitled to his earnings during minority, his inability to labor during his minority is not a proper element of damage in this case. The case of Railroad Co. v. Johnson (Tex. Sup.) 44 S. W. 1067, was an action for personal injuries to an infant, and an instruction not different in principle from those complained of was held reversible error for the reasons now urged by the defendant. The same principle was involved in an instruction considered in Decker v. McSorley (Wis.) 86 N. W. 554. The instruction was condemned.

A further objection is urged against these instructions, and that is that they instruct the jury that the damages shall not exceed $25,000. The defendant insists that an intimation was thereby conveyed to the jury that they might allow that sum, and that such intimation was prejudicial to the defendant. No authority is cited in support of this objection, nor are we aware that any exists. It is not unusual for courts to instruct the jury as to the limit of damages allowable under the pleadings in the case. As a matter of practice, we believe it should be omitted. If the damages awarded exceed the amount allowable, the remedy is simple. We believe that most lawyers will agree with us that the intimation conveyed to the jury by such a statement is dangerous to the defendant. We do not go to the extent of saying that it would constitute reversible error, but we believe the practice should be discountenanced.

In the course of the trial the court permitted the plaintiff to introduce in evidence a certain printed rule of the defendant which provided that turntables should be kept locked when not in use, and that it was the duty of agents at the stations where there was no engine house foreman to see that such turntables were locked after being used. Parol testimony was admitted to the same effect. It also admitted evidence to the effect that immediately after the accident the station agent went to the turntable and locked it. The defendant insists that the admission of this evidence was error. We do not think so. It was necessary to bring home to the defendant knowledge that children were likely to resort to the turntable. There is evidence tending to show that both employés mentioned in the rule introduced in evidence had knowledge of such fact, and the rule, taken in connection with the evidence to their relations to the defendant, tends to bring such knowledge home to the defendant. That the agent locked the turntable immediately after the accident had a bearing on the question of whether the turntable was locked before the accident, which was one of the issues in the case.

Another witness was permitted to testify that he went to the turntable after the accident, on the same day, and found the table unlocked. The defendant argues that it was not admissible to show the condition of the table after the accident occurred. This evidence, we think, is also admissible, as tending to show that the children found the [91 N.W. 886] turntable unlocked before the accident occurred.

Objection is also made to the admission of evidence of testimony to the effect that the roadmaster, or division superintendent, which one is not stated, was at the turntable after the accident, how long after does not appear. The object of this evidence is not clear, nor are we able to see how it had any influence on the verdict one way or another. The objection that it was immaterial appears to be well founded, but we cannot see that its admission would constitute reversible error.

The defendant complains of the admission of testimony to the effect that the station agent on the day of the accident met the children, who were playing with the push car, rode a short distance on the push car, and said nothing to the children about playing with it. The ground of this complaint appears to be that playing with the push car, when the agent saw them and took part in the sport, and playing on the turntable, some 500 yards distant, were independent transactions, and the agent could not reasonably anticipate that they would go to the turntable from the place he left them, and therefore was not required to warn them of its danger. It seems to us that the station grounds as a whole were dangerous premises, especially for children of that age. The turntable was only one of its many dangers. The evidence objected to, it seems to us, was competent to show that the defendant had knowledge that children frequented these dangerous premises, and that they did so with its knowledge and consent. We think there was no error in the admission of this testimony.

Certain impeaching questions were addressed to one of the defendant's witnesses which were objected to by the defendant on the ground, among others, that no foundation had been laid. Before the questions were asked, the defendant's attention was directed to the time and place where the contradictory statements were made, and to the persons in whose presence they were made. Taken in connection with his testimony on direct examination, the witness could not fail to understand to what the questions related. We think the foundation was sufficient, and that his answers, some of them showing that he had made contradictory statements, were properly admitted.

We recommend that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.

AMES and DUFFIE, CC., concur.

PER CURIAM.

For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.

[159 F.2d 170] Robert S. Erskine and Kirlin, Campbell, Hickox & Keating, all of New York City (John H. Hanrahan, of New York City, of counsel), for Grace Line, Inc.

Edmund F. Lamb and Purdy & Lamb, all of New York City, for Conners Marine Co., Inc.,

Christopher E. Heckman and Foley & Martin, all of New York City, for Carroll Towing Co., Inc.

Frederic Conger and Burlingham, Veeder, Clark & Hupper, all of New York City (Chauncey I. Clark, of New York City, of counsel), for Pennsylvania Railroad Company.

Before L. HAND, CHASE and FRANK, Circuit Judges.

These appeals concern the sinking of the barge, "Anna C," on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, "Carroll," of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge's cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half, not recovered against the Carroll Company because of limitation of liability; it also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable. The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.

The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, "Anna C," to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a barge, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two tiers of barges. The Grace Line, which had chartered the tug, "Carroll," sent her down to the locus in quo to "drill" out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the "Carroll" at the time were not only her master, but a "harbormaster" employed by the Grace Line. Before throwing off the line between the two tiers, the "Carroll" nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines "slow ahead" against the ebb tide which was making at that time. The captain of the "Carroll" put a deckhand and the "harbormaster" on the barges, told them to throw off the line which barred the entrance to the slip; [159 F.2d 171] but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The "harbormaster" and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the "Anna C," to the pier.

After doing so, they threw off the line between the two tiers and again boarded the "Carroll," which backed away from the outside barge, preparatory to "drilling" out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the "Anna C," either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the "Anna C" fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i. e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, "Grace," owned by the Grace Line, and the "Carroll," came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the "Anna C" afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the "harbormaster" was not authorized to pass on the sufficiency of the fasts of the "Anna C" which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the "harbormaster" was given an over-all authority. Both wish to charge the "Anna C" with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.

The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the "harbormaster's" authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an "employee," in his second conclusion of law he held that the Grace Line was "responsible for his negligence." Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the "harbormaster" showed that he was authorized to pass on the sufficiency of the fasts of the "Anna C." He said that it was part of his job to tie up barges; that when he came "to tie up a barge" he had "to go in and look at the barges that are inside the barge" he was "handling"; that in such cases "most of the time" he went in "to see that the lines to the inside barges are strong enough to hold these barges"; and that "if they are not" he "put out sufficient other lines as are necessary." That does not, however, determine the other question: i. e., whether, when the master of the "Carroll" told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the "harbormaster" to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: "The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so." Whatever doubts the testimony of the "harbormaster" might raise, this finding settles it for us that the master of the "Carroll" deputed the deckhand and the "harbormaster," jointly to pass upon the sufficiency of the "Anna C's" fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck,^[1] was against the tug there held liable, because the tug had only acted under the express orders of the "harbormaster." Here, although the relations were reversed, that makes no difference in principle; and the "harbormaster" was not instructed what he should do about the fasts, but was allowed [159 F.2d 172] to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.

We cannot, however, excuse the Conners Company for the bargee's failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the "harbormaster" jointly undertook to pass upon the "Anna C's" fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the "harbormaster" would have paid any attention to any protest which he might have made, had he been there. We do not therefore attribute it as in any degree a fault of the "Anna C" that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker's propeller, which we shall speak of as the "collision damages." On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the "Carroll" and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the "sinking damages." Thus, if it was a failure in the Conner Company's proper care of its own barge, for the bargee to be absent, the company can recover only one third of the "sinking" damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.

As to the consequences of a bargee's absence from his barge there have been a number of decisions; and we cannot agree that it is never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young,^[2] held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff,^[3] treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level,^[4] held liable for damage to a stake-boat, a barge moored to the stake-boat "south of Liberty Light, off the Jersey shore," because she had been left without a bargee; indeed he declared that the bargee's absence was "gross negligence." In the Kathryn B. Guinan,^[5] Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee's absence would not be the basis for the owner's negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko,^[6] Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York,^[7] the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree,^[8] but for another reason. In The Sadie,^[9] we affirmed Judge Coleman's holding^[10] that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the [159 F.2d 173] inside barge. In The P. R. R. No. 216,^[11] we charged with liability a lighter which broke loose from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian,^[12] as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter's lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 23^[13] went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton,^[14] we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bargee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williamsburgh Power Plant Corporation^[15] we charged a scow with half damages because her bargee left her without adequate precautions. In O'Donnell Transportation Co. v. M. & J. Tracy,^[16] we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having "left the vessel to go ashore for a time on his own business."

It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B > PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee's prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in "The Kathryn B. Guinan," supra;^[17] and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee's absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o'clock in the afternoon of January 3rd, and the flotilla broke away at about two o'clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence [159 F.2d 174] that he had no excuse for his absence. At the locus in quo — especially during the short January days and in the full tide of war activity — barges were being constantly "drilled" in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold — and it is all that we do hold — that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was impleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full "collision damages" and half "sinking damages," and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for "collision damages" will be collected in full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for "sinking damages" being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be for one half the "collision damages" and for one sixth the "sinking damages." If the fund be large enough, the result will be to throw one half the "collision damages" upon the Grace Line and one half on the Carroll Company; and one third of the "sinking damages" on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll Company.

Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.

[1] 2 Cir., 148 F.2d 522.

[2] Fed.Cas.No. 2786.

[3] D.C., 84 F. 719.

[4] D.C., 128 F. 511.

[5] 2 Cir., 176 F. 301.

[6] D.C., 10 F.2d 884.

[7] D.C., 14 F.2d 528.

[8] 2 Cir., 18 F.2d 775.

[9] 2 Cir., 62 F.2d 1076.

[10] D.C., 57 F.2d 908.

[11] 56 F.2d 604.

[12] 2 Cir., 62 F.2d 242.

[13] 2 Cir., 64 F.2d 121.

[14] 2 Cir., 72 F.2d 283.

[15] 2 Cir., 130 F.2d 96, 98.

[16] 2 Cir., 150 F.2d 735, 738.

[17] 2 Cir., 176 F.2d 301.

227 N.Y. 208

Negligence — injury to boy who touched trolley wire with a piece of wire — defendant not liable in absence of any evidence that reasonable precautions had not been taken against injury from trolley wire.

The defendant runs a trolley line which is crossed by a bridge. The plaintiff, a boy of about twelve years of age, while crossing the bridge, in swinging a wire about eight feet long, brought it in contact with defendant's trolley wire which was between four and five feet below the top of the parapet of the bridge, which parapet was eighteen inches wide. By this contact the plaintiff was shocked and burned. Held, that there was no evidence that defendant had failed in its duty to adopt reasonable precautions against injury from the wire. Hence a recovery by plaintiff cannot be sustained.

Adams v. Bullock, 188 App. Div. 948, reversed.

(Argued October 23, 1919; decided November 18, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 15, 1919, affirming a judgment in favor of plaintiff entered upon a verdict.

The nature of the action and the facts, so far as material, are stated in the opinion.

Thomas R. Wheeler for appellant. The defendant was not guilty of negligence. The trial court erred in submitting the case to the jury. (Freeman v. B.H.R.R. Co., 54 App. Div. 596; Sheffield Co. v. Morton, 161 Ala. 153; Kempf v. S. & I. E. R, Co., 82 Wash. 263; Johnston N. O. T. H. El. Co., 17 L. R. A. [N. S.] 435; Mayfield W. & L. Co. v. Webb, 33 Ky. L. 909; Graves v. Washington Water Power Co., 44 Wash. 675.)

Murle L. Rowe and Nelson J. Palmer for respondent. The negligence of the defendant was a question of fact [209]

for the jury to determine. (Hickok v. A. L., H. & P. Co., 200 N.Y. 465; Webster v. Richmond Light & R.R. Co., 158 App. Div. 210; Braun v. Buffalo General ElectricalCo., 200 N.Y. 484,492; Caglione v. Mount Morris Electric Light, 56 App. Div. 191; Paine v. Electric Illuminating, etc., Co., 64 App. Div. 477; Wagner v. Brooklyn Heights R. R. Co., 69 App. Div. 349; 174 N. Y. 520; Morhard v. Richmond Light & R. R. Co., 111 App. Div. 353.) The defendant was negligent because it maintained a wire carrying a high and dangerous voltage of electricity, unguarded in any manner, at a point in dangerous proximity to a place frequented by pedestrians and used by children as a playground. (Braun v. Buffalo General Electrical Co., 200 N. Y. 484; Wilson v. American Bridge Co., 74 App. Div. 596; Wittleder v. Electric Co., 47 App. Div. 410; 50 App. Div. 478; 219 N.Y. 443; Travell v. Bannerman, 71 App. Div. 439; 174 N.Y. 49; Robertson v. Lighting & Power Co., 178 App. Div. 720.)

CARDOZO, J. The defendant runs a trolley line in the city of Dunkirk, employing the overhead wire system. At one point, the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsylvania railroads. Pedestrians often use the bridge as a short cut between streets, and children play on it. On April 21, 1916, the plaintiff, a boy of twelve years, came across the bridge, swinging a wire about eight feet long. In swinging it, he brought it in contact with the defendant's trolley wire, which ran beneath the structure. The side of the bridge was protected by a parapet eighteen inches wide. Four feet seven and three-fourths inches below the top of the parapet, the trolley wire was strung. The plaintiff was shocked and burned when the wires came together. He had a verdict at Trial Term, which has been affirmed at the Appellate Division by a divided court.

We think the verdict cannot stand. The defendant in using an overhead trolley was in the lawful exercise of its [210] franchise. Negligence, therefore, cannot be imputed to it because it used that system and not another (Dumphy v. Montreal L., H. & P. Co., 1907 A.C. 454). There was, of course, a duty to adopt all reasonable precautions to minimize the resulting perils. We think there is no evidence that this duty was ignored. The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance (Nelson v. Branford L. & W. Co., 75 Conn. 548, 551; Braun v. Buffalo Gen. El. Co., 200 N.Y. 484). But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur. It might with equal reason have been expected anywhere else. At any point upon the route, a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it (Green v. W.P. Rys. Co., 246 Penn. St. 340). If unable to reach it from the walk, he might stand upon a wagon or climb upon a tree. No special danger at this bridge warned the defendant that there was need of special measures of precaution. No like accident had occurred before.

No custom had been disregarded. We think that ordinary caution did not involve forethought of this extraordinary peril. It has been so ruled in like circumstances by courts in other jurisdictions (Green v. W.P. Rys. Co., supra; Vannatta v. Lancaster L. & P. Co., 164 Wis. 344; Parker v. Charlotte Elec. Ry. Co., 169 N.C. 68; Kempf v. S. & I. E. R. R. Co., 82 Wash. 263; Sheffield Co. v. Morton, 161 Ala. 153). Nothing to the contrary was held in Braun v. Buffalo Gen, El. Co. (200 N. Y. 484) or Witlleder v. Citizens Electric Ill, Co. (47 App. Div. 410). In those cases, the accidents were well within the range of prudent foresight (Braun v. Buffalo Gen. El. Co., supra, at p. [211] 494). That was also the basis of the ruling in Nelson v. Branford Lighting & Water Co. (75 Conn. 548, 551). There is, we may add, a distinction, not to be ignored, between electric light and trolley wires. The distinction is that the former may be insulated. Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect. With trolley wires, the case is different. Insulation is impossible. Guards here and there are of little value. To avert the possibility of this accident and others like it at one point or another on the route, the defendant must have abandoned the overhead system, and put the wires underground. Neither its power nor its duty to make the change is shown. To hold it liable upon the facts exhibited in this record would be to charge it as an insurer.

The judgment should be reversed and a new trial granted, with costs to abide the event.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CRANE and ANDREWS, JJ., concur.

Judgments reversed, etc.

[292 U.S. 99] Mr. Wm. St. J. Wines, of Springfield, Ill., for petitioner.

Mr. Homer Hall, of St. Louis, Mo., for respondent.

John Pokora, driving his truck across a railway grade crossing in the city of Spring field, Ill., was struck by a train and injured. Upon the trial of his suit for damages, the District Court held that he had been guilty of contributory negligence, and directed a verdict for the defendant. The Circuit Court of Appeals (one judge dissenting) affirmed (66 F.(2d) 166), resting its judgment on the opinion of this court in B. & O.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645. A writ of certiorari brings the case here.

Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The tracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a crossing at Edwards street running east and west. Two ice depots are on opposite corners of Tenth and Edward streets; one at the northeast corner, the other at the southwest. Pokora, driving west along Edwards street, stopped at the first of these corners to get his load of ice, but found so many trucks ahead of him that he decided to try the depot on the other side of the way. In this crossing of the railway, the accident occurred.

[292 U.S. 100] The defendant has four tracks on Tenth street; a switch track on the east, then the main track, and then two switches. Pokora, as he left the northeast corner where his truck had been stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet from the north line of Edwards street, cut off his view of the tracks beyond him to the north. At the same time he listened. There was neither bell nor whistle. Still listening, he crossed the switch, and reaching the main track was struck by a passenger train coming from the north at a speed of twenty-five to thirty miles an hour.

The burden of proof was on the defendant to make out the defense of contributory negligence. Miller v. Union Pacific R. Co., 290 U.S. 227, 232, 54 S.Ct. 172, 78 L.Ed. 285. The record does not show in any conclusive way that the train was visible to Pokora while there was still time to stop. A space of eight feet lay between the west rail of the switch and the east rail of the main track, but there was an overhang of the locomotive (perhaps two and a half or three feet), as well as an overhang of the box cars, which brought the zone of danger even nearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was farther back (perhaps five feet or even more), just how far we do not know, for the defendant has omitted to make proof of the dimensions. Nice calculations are submitted in an effort to make out that there was a glimpse of the main track before the switch was fully cleared. Two feet farther back the track was visible, it is said, for about 130 or 140 feet. But the view from that position does not tell us anything of significance unless we know also the position of the train. Pokora was not protected by his glimpse of 130 feet if the train at the same moment was 150 feet away or farther. For all that appears he had no view of the main track northward, or none for [292 U.S. 101] a substantial distance, till the train was so near that escape had been cut off. Cf. Dobson v. St. Louis S.F. Ry. Co., 223 Mo.App. 812, 822, 10 S.W.(2d) 528; Turner v. Minneapolis, St. P. & S.S.M.R. Co., 164 Minn. 335, 341, 205 N.W. 213.

In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night. Cf. Norfolk & W. Ry. v. Holbrook (C.C.A.) 27 F.(2d) 326. Pokora made his crossing in the daytime, but like the traveler by night he used the faculties available to one in his position. Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598; Parsons v. Syracuse, B. & N.Y.R. Co., 205 N.Y. 226, 228, 98 N.E. 331. A jury, but not the court, might say that with faculties thus limited he should have found some other means of assuring himself of safety before venturing to cross. The crossing was a frequented highway in a populous city. Behind him was a line of other cars, making ready to follow him. To some extent, at least, there was assurance in the thought that the defendant would not run its train at such a time and place without sounding bell or whistle. L. & N.R. Co. v. Summers (C.C.A.) 125 F. 719, 721; Smith-Hurd Rev. St. 1933, c. 114, § 59, Illinois Revised Statutes (1933 Ed.), c. 114, par. 84.^[1] Indeed, the [292 U.S. 102] statutory signals did not exhaust the defendant's duty when to its knowledge there was special danger to the traveler through obstructions on the roadbed narrowing the field of vision. Wright v. St. Louis-S.F. Ry. Co., 327 Mo. 557, 566, 37 S.W.(2d) 591; Hires v. Atlantic City R. Co., 66 N.J. Law, 30, 48 A. 1002; Cordell v. N.Y.C. & H.R.R. Co., 70 N.Y. 119, 26 Am.Rep. 550. All this the plaintiff, like any other reasonable traveler, might fairly take into account. All this must be taken into account by us in comparing what he did with the conduct reasonably to be expected of reasonable men. Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485; Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 32 S.Ct. 783, 56 L.Ed. 1221, 44 L.R.A.(N.S.) 154.

The argument is made, however, that our decision in B. & O.R. Co. v. Goodman, supra, is a barrier in the plaintiff's path, irrespective of the conclusion that might commend itself if the question were at large. There is no doubt that the opinion in that case is correct in its result. Goodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a clear space of eighteen feet within which the train was plainly visible.^[2] With that opportunity, he fell short of the legal standard of duty established for a traveler when he failed to look and see. This was decisive of the case. But the court did not stop there. It added a remark, unnecessary upon the facts before it, which has been a fertile source of controversy. 'In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.'

There is need at this stage to clear the ground of brushwood that may obscure the point at issue. We do [292 U.S. 103] not now inquire into the existence of a duty to stop, disconnected from a duty to get out and reconnoitre. The inquiry, if pursued, would lead us into the thickets of conflicting judgments.^[3] Some courts apply what is often spoken of as the Pennsylvania rule, and impose an unyielding duty to stop, as well as to look and listen, no matter how clear the crossing or the tracks on either side. See, e.g., Benner v. Philadelphia & Reading R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R. 759; Thompson v. Pennsylvania R. Co., 215 Pa. 113, 64 A. 323, 7 Ann.Cas. 351; Hines v. Cooper, 205 Ala. 70, 88 So. 133; cf. Pennsylvania R. Co. v. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398. Other courts, the majority, adopt the rule that the traveler must look and listen, but that the existence of a duty to stop depends upon the circumstances, and hence generally, even if not invariably, upon the judgment of the jury. See, e.g., Judson v. Central Vermont R. Co., 158 N.Y. 597, 605, 606, 53 N.E. 514, and cases cited; Love v. Fort Dodge R. Co., 207 Iowa, 1278, 1286, 224 N.W. 815; Turner v. Minneapolis R. Co., supra; Wisconsin & Arkansas Lumber Co. v. Brady, 157 Ark. 449, 454, 248 S.W. 278; cf. Metcalf v. Central Vermont R. Co., 78 Conn. 614, 63 A. 633; Gills v. N.Y., C. & St. L.R. Co., 342 Ill. 455, 174 N.E. 523. The subject has been less considered in this court, but in none of its opinions is there a suggestion that at any and every crossing the duty to stop is absolute, irrespective of the danger. Not even in B. & O.R. Co. v. Goodman, supra, which goes farther than the earlier cases, is there support for such a rule. To the contrary, the opinion makes it clear that the duty is conditioned upon the presence of impediments whereby sight and hearing become inadequate for the traveler's protection. Cf. Murray v. So. Pacific Co., 177 Cal. 1, 10, 169 P. 675; Williams v. Iola Electric R. Co., 102 Kan. 268, 271, 170 P. 397.

[292 U.S. 104] Choice between these diversities of doctrine is unnecessary for the decision of the case at hand. Here the fact is not disputed that the plaintiff did stop before he started to cross the tracks. If we assume that by reason of the box cars, there was a duty to stop again when the obstructions had been cleared, that duty did not arise unless a stop could be made safely after the point of clearance had been reached. See, e.g., Dobson v. St. Louis-S.F. Ry. Co., supra. For reasons already stated, the testimony permits the inference that the truck was in the zone of danger by the time the field of vision was enlarged. No stop would then have helped the plaintiff if he remained seated on his truck, or so the triers of the facts might find. His case was for the jury, unless as a matter of law he was subject to a duty to get out of the vehicle before it crossed the switch, walk forward to the front, and then, afoot, survey the scene. We must say whether his failure to do this was negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds. Grand Trunk Ry. Co. v. Ives, supra.

Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. See, e.g., Torgeson v. Missouri-K.-T.R. Co., 124 Kan. 798, 800, 801, 262 P. 564, 55 A.L.R. 1335; Dobson v. St. Louis-S.F.R. Co., supra; Key v. Carolina & N.W.R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 530. Often the added safeguard will be dubious though the track happens to be straight, as [292 U.S. 105] it seems that this one was, at all events as far as the station, about five blocks to the north. A train traveling at a speed of thirty miles an hour will cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction. At times the course of safety may be different. One can figure to oneself a roadbed so level and unbroken that getting out will be a gain. Even then the balance of advantage depends on many circumstances and can be easily disturbed. Where was Pokora to leave his truck after getting out to reconnoitre? If he was to leave it on the switch, there was the possibility that the box cars would be shunted down upon him before he could regain his seat. The defendant did not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen. If he was to leave his vehicle near the curb, there was even stronger reason to believe that the space to be covered in going back and forth would make his observations worthless. One must remember that while the traveler turns his eyes in one direction, a train or a loose engine may be approaching from the other.

Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to [292 U.S. 106] tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury. Dolan v. D. & H.C. Co., 71 N.Y. 285, 288, 289; Davis v. N.Y.C. & H.R.R. Co., 47 N.Y. 400, 402. The opinion in Goodman's Case has been a source of confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has had only wavering support in the courts of the states.^[4] We limit it accordingly.

The judgment should be reversed, and the cause remanded for further proceedings in accordance with this opinion.

It is so ordered.

[1] The Illinois Act provides: 'Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.'

[2] For a full statement of the facts, see the opinion of the Circuit Court of Appeals, 10 F.(2d) 58, 59.

[3] The cases are collected in 1 A.L.R. 203 and 41 A.L.R. 405 notes.

[4] Many cases are collected in 43 Harvard Law Review 926, 929, 930, and in 56 A.L.R. 647 note.

See, also, Dobson v. St. Louis-S.F.R. Co., supra; Key v. Carolina & N.W.R. Co., supra; Gills v. N.Y., C. & St. L.R. Co., supra; Georgia Railroad & Banking Co. v. Stanley, supra; Miller v. N.Y.C.R. Co., 226 App.Div. 205, 208, 234 N.Y.S. 560; Id., 252 N.Y. 546, 170 N.E. 137; Schrader v. N.Y., C. & St. L.R. Co., 254 N.Y. 148, 151, 172 N.E. 272; Dolan v. D. & H.C. Co., supra; Huckshold v. St. L., I.M. & S.R. Co., 90 Mo. 548, 2 S.W. 794. Contra: Koster v. Southern Pacific Co., 207 Cal. 753, 762, 279 P. 788; Vaca v. Southern Pacific Co., 91 Cal.App. 470, 475, 267 P. 346; Davis v. Pere Marquette R. Co., 241 Mich. 166, 169, 216 N.W. 424; cf. Torgeson v. Missouri-K.-T.R. Co., supra.