McCracken v. Sloan

40 N.C. App. 214, 252 S.E.2d 250 (1979)



Assault and battery are two separate common law actions which go together like ham and eggs. The interest in freedom from apprehension of a harmful or offensive contact with the person is protected by the action for assault. The interest in freedom from intentional and unpermitted contacts with the plaintiff's person is protected by the action for battery. It is not necessary that the contact be brought about by a direct application of force. It is enough that the defendant set a force in motion which ultimately produces the result. The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff.


The plaintiff had been a postal employee in the City of Charlotte and the defendant was the postmaster in that city. The plaintiff had a history of being allergic to tobacco smoke. Dr. Herbert O. Seiker, who was in charge of the Division of Pulmonary and Allergic Disease in the Department of Medicine of Duke University, testified by deposition that plaintiff is allergic to tobacco smoke with an allergy of "3 plus on a scale of one to four." The plaintiff had made complaints and distributed literature within the post office building in regard to the dangers of smoking. He had requested and been denied sick leave for his allergic condition. On 3 April 1975 and 13 May 1975 the plaintiff attended meetings in the office of the defendant at which the plaintiff's application for sick leave was discussed. At both of these meetings, the defendant smoked a cigar, which induced the plaintiff to file a lawsuit alleging that the defendant committed an assault and battery upon him by smoking cigars in his presence. Thereafter, at a pre-trial conference, the parties stipulated what the evidence most favorable to plaintiff would be. On the basis of that stipulation, the lower court dismissed plaintiff's action for civil assault and battery. Plaintiff appealed the lower court’s decision.


Was the lower court correct to dismiss the plaintiff’s action for lack of evidence?




The appellate court found no evidence that plaintiff suffered any physical illness from inhaling defendant's cigar smoke. Each of the doctor's statements said plaintiff was allergic to tobacco smoke, but neither said that the smoking of the cigars by defendant could have caused a physical illness to plaintiff. There being no competent evidence that plaintiff suffered a physical illness from smelling the cigar smoke, the appellate court was left with evidence that defendant smoked cigars in his own office when he knew it was obnoxious to a person in the room. Plaintiff experienced some mental distress as a result of inhaling the cigar smoke, but that was not enough evidence to support a claim for civil assault or battery.

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