Western Union Tel. Co. v. Hill

25 Ala. App. 540, 150 So. 709, 1933 Ala. App. LEXIS 171



While every battery includes an assault, an assault does not necessarily require a battery to complete it. What it does take to constitute an assault is an unlawful attempt to commit a battery, incomplete by reason of some intervening cause; or, to state it differently, to constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner.


The husband sent his wife to inquire about a clock repair. Upon arrival, the employee of the clock repair shop attempted to physically and verbally assault her. the husband and wife filed a case for damages from assault against the clock repair shop. The trial court refused to charge the jury on the affirmative charge that the employee was not acting within the line and scope of his employment in doing the acts complained of but entered judgment in favor of the husband. The case was appealed to the Court of Appeals of Alabama.


Should the doctrine of respondeat superior apply?




The court determined that the evidence was sufficient to present the issue of whether an actionable assault had occurred to the jury and that the trial court's rulings on that question did not constitute error. However, the court found that the evidence was conclusive to the effect that, while the employee was the agent of the employer, in the proposal and technical assault made by him on the wife, he stepped aside wholly from his master's business to pursue a matter entirely personal. The court found that in such a case, the doctrine of respondeat superior did not apply. The court concluded that the rulings of the trial court with reference to this issue were erroneous and that the employer was entitled to the general charge.

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