TITLE A: PERSONAL HARMS

SUB-TITLE (I): CORPORAL HARMS

Topic 1. Corporal Harm in General.

(Trespass by Battery. Case.)

22. REGISTRUM BREVIUM (1595). Breve de transgressione in banco (fol. 93). Rex, vicecomiti Lincolniensi salutem. Si A. fecerit te securum de clamore suo prosequendo; tunc pone per vadium & saluos plegios B, quod sit coram iustitiariis nostris apud Westmonasterium in octauis sancti Michaelis; (vel sic; quod sit coram nobis in octauis sancti Michaelis ubicunque tunc fuerimus in Anglia:) Ostensurus quare vi & armis in ipsum A. apud N. insultum fecit, & ipsum verberauit, vulnerauit & male tractauit: ita quod de vita eius desperabatur, & alia enormia ei intulit, ad graue damnum ipsius A, & contra pacem nostram. Et habeas ibi nomina plegiorum & hoc breue. T. &c.

23. ANON. The Attorney's Practice in the Court of Common Pleas (1746; 2d ed., Vol. I, p. 121.) Declaration in battery. Middlesex, to wit, J. M., late of, etc. was attached to answer J. H. of a plea, wherefore with force and arms he assaulted the said J. H. at Westminster in the county of Middlesex, and beat, wounded and illtreated him, so that his life was despaired of, and other injuries did to him, to the great damage of the said J. H. and against the peace of our lord the present king, etc. And whereupon the said J. H. by J. C. his attorney, complains, that the said J. M. on the ...... day of ...... in the

year of his present majesty's reign, with force of arms, to wit, with swords, staves, and knives, assaulted the said J. H. at Westminster in the county of Middlesex, and beat, wounded, and treated him ill, so that his life was despaired of; and other enormities, etc. to the great damage, etc. and against the peace, etc. wherefore he says that he is injured, and hath damage to the value of 501. And thereupon he brings suit, etc.

24. HOPPER v. REEVE

COMMON PLEAS. 1817

7 Taunt. 698

THE plaintiff declared that the defendant, with force and arms, at Portsmouth, drove a certain gig against a certain carriage in which the plaintiff's wife was then riding, and overturned it, and greatly hurt the plaintiff's wife. After verdict for the plaintiff taken at the Winchester Lent assizes, 1817, before Abbott, J., Pell, Serjt., in Easter term, 1817, moved in arrest of judgment, upon the ground that this ought not to have been an action of trespass, but an action on the case, for that the declaration did not state that the carriage in which the plaintiff's wife was riding, was the carriage of the plaintiff, nor averred any injury to the carriage, but was solely brought for an injury to the wife. Though that injury received by the plaintiff's wife arose out of an act of the defendant, yet it was in consequence of the defendant having run against the carriage of some other person (for such it must be in

tended to be, not being stated to be the carriage of the plaintiff), and not act could be more consequential in its nature than this injury to the plaintiff's wife. The case of Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403, went beyond the law, but not so far as this.

The Court granted a rule nisi. . . .

Pell, in support of his rule. The objection is, that the grievance complained of warrants case but not trespass, for the hurt to the woman was consequential on an act of hurt to another person's carriage, Pitts v. Gaince and Foresight, 1 Ld. Raym. 558. The plaintiff might have declared on his possession of this carriage, and in that case, he might have declared in trespass. Reynolds v. Clarke, Str. 635; 2 Ld. Raym. 1402. The driving against the carriage, was, so far as appears on this record, no trespass to the plaintiff. The distinction is, that where the injury is immediate, the remedy is trespass, where it is consequential, there the proper remedy is case. It appears that this plaintiff had no interest in the carriage, and the damage was therefore consequential; — Leame v. Bray, 3 East, 593.

GIBBS, C. J. I do not think I could point out any defects in the legal argument of either of the counsel. But the facts are not brought within the law stated by the defendant's counsel; for I am of opinion that he who throws over a chair or a carriage in which another person is sitting, commits a direct trespass against the person of him who is sitting in that carriage or chair, and that the action of trespass may be well maintained for it. Rule discharged.

25. WIFFIN v. KINCARD

COMMON PLEAS. 1807

2 Bos. & P. N. R. 471

THIS was an action for assault, battery, and false imprisonment. At the trial before Sir J. Mansfield, Ch. J., at the Sittings after last Easter term, it appeared that a number of persons being assembled in consequence of an alarm occasioned by a mad ox, the defendant, who was a constable, was sent for; that the plaintiff had posted himself upon some rails before a gentleman's house, which place he refused to quit, though frequently desired; that the defendant, in order to draw his attention, touched him with his constable's staff, but without hurting him, and desired him to get down; and the plaintiff still refusing, the defendant, at the desire of several persons, took him by the collar and carried him to the watch-house, from which he was discharged as soon as he could be brought before a justice. The jury found a verdict for one shilling damages, and the Chief Justice certified under the 43 Eliz. c. 6, that the damages amounted to one shilling only.

Best, Serjt., now moved for a rule to shew cause why the prothonotary should not be directed to tax full costs to the plaintiff, notwithstanding the certificate; and contended that, as actions for assault and battery were excepted out of the statute of Elizabeth, it was not competent to

the Judge to certify under that statute if any battery were proved; that in the present case a battery was proved, first by the striking with the constable's staff, for that the intention with which a blow is given makes no difference in a civil action for the battery, and, secondly, by taking the plaintiff by the collar in order to carry him to prison. He referred to the case of Emmet v. Lyne, 1 New Rep. 255, where the whole question was, Whether a battery was proved or not? it being taken for granted that if proved the Judge could not certify.

The Court were clearly of opinion that the touch given by the constable's staff, in order to engage the plaintiff's attention, did not amount to a battery. But there was some doubt whether the taking by the collar did not; Sir J. MANSFIELD, Ch. J., saying that taking the plaintiff by the collar without any improper violence, though an imprisonment, was no battery, which is a beating; and CHAMBRE, J., saying that imposition of hands in order to imprison is a battery.

The Court agreed, however, that whether the evidence amounted to proof of a battery or not, it would not prevent the Judge from certifying with respect to the imprisonment under the 43 of Elizabeth; that the plaintiff was not entitled to full costs for the assault and battery, unless the Judge certified under 22 & 23 Car. 2, c. 9, and here no such certificate had been granted. . .

Best, Serjt., took nothing by his motion.1

26. REGISTRUM BREVIUM (1595). Breve de veneno in cibos posito (fol. 102 a). Si I. & I. vxor eius fecerint te &c. tunc pone &c. I. quod sit &c. ostensurus quare cum idem I. in seruitio ipsorum I. & I. apud T. extitit, ex praecogitata malicia venenum in cibos ipsius I. occulte & proditionaliter posuit, per quod eadem I. tam graui infirmitate postmodum detinebatur, quod de vita eius desperabatur, & alia enormia &c. ad graue damnum ipsorum I. & I. vt dicit. Et habeas ibi &c.

1 [Compare the following:

HOLT, C. J., upon evidence in trespass for assault and battery, declared, First, That the least touching of another in anger is a battery. Secondly, If two or more meet in a narrow passage, and, without any violence or design of harm, the one touches the other gently, it will be no battery. Thirdly, If any of them use violence against the other, to force his way in a rude, inordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt will be a battery. (1704. Cole v. Turner, 6 Mod. 149.)

COWEN, J., in Seneca Road Co. v. Auburn & Rochester R. Co. (1843. 5 Hill, N. Y. 170, at 175.) It is said, however de minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another's property. To warrant an action in such case, says a learned writer, "some temporal damage, be it more or less, must actually have resulted, or must be likely to ensue. The degree is wholly immaterial ; nor does the law, upon every occasion, require distinct proof that an inconvenience has been sustained. For example, if the hand of A. touch the person of B., who shall declare that pain has or has not ensued? The only mode to render B. secure is to infer that an inconvenience has actually resulted." (Hamm. N. P. 39, Am. ed. of 1823.) . . . The rule is necessary for the general protection of property; and a greater evil could scarcely befall a country than the rule being frittered away or relaxed in the least, under the idea that though an exclusive right be violated, the injury is trifling, or indeed nothing at all.]

27. SIR ANTHONY FITZHERBERT. New Natura Brevium (1534, fol. 234 B). [The writ De Leproso Amovendo lies] where a man is a lazar or a leper, and is dwelling in any town and he will come into the church or amongst his neighbors where they are assembled, to talk with them, to their annoyance or disturbance. Then he or they may sue forth that writ for to remove him from their company. . . . But it seemeth that if a man be a leper or lazar and will keep himself within his house and will not converse with his neighbors, that then he shall not be moved out of his house. [The writ to the sheriff reads,] Because we have received information that I. of N. is a leper . . . and refuses to remove himself . . . to the great damage of the men aforesaid, and manifest peril by reason of the contagion of the disease aforesaid, we being willing to take precaution against such danger, . . . if you find him to be a leper, . . . then without delay, in the best manner you can, cause him to be carried away and removed from the communication of the said men to a solitary place, to dwell there, as the custom is, lest by such his common conversation, damage or peril should in any wise happen to the said men.

28. HILL v. METROPOLITAN ASYLUM DISTRICT QUEEN'S BENCH DIVISION, SUPREME COURT OF JUDICATURE OF ENGLAND, 1878. HOUSE OF LORDS, 1881

L. R. 4 Q. B. D. 433, 6 App. Cas. 193

be

THE action was tried at the Middlesex Michaelmas Sittings, 1878, fore Pollock, B., and a special jury. The plaintiffs were Sir Rowland Hill, William Lund, and Alfred Downing Fripp, owners of land (by separate rights) adjacent to the hospital built and maintained at Hampstead by the defendants, the managers of the Metropolitan Asylum District, incorporated under the Metropolitan Poor Act, 1867 (30 Vict. c. 6). The plaintiffs claimed damages in respect of an alleged nuisance caused by the hospital, and an injunction against the defendants using the hospital for smallpox or scarlet fever or other infectious or contagious diseases. 1878. Dec. 18. The case came on for further consideration. Herschell, Q. C., Bompas, Q. C., and Finlay, for the plaintiffs. Sir John Holker, Q. C., A. G., Willis, Q. C., C. H. Anderson, and Proudfoot, for the defendants.

The learned judge took time to consider his judgment, which sets out the facts and the arguments. Cur. adv. vult.

Jan. 28, 1879. POLLOCK, B. This action was brought to recover damages in respect of and to obtain an injunction against the recurrence of what the plaintiffs alleged to be a nuisance, affecting their rights by the erection and maintenance of an asylum, consisting of several buildings which were erected and maintained for the reception and treatment of paupers suffering from smallpox.

The plaintiffs proved that between December, 1870, and July, 1872, 7352 patients were admitted into the asylum, of whom 1379 died, and that there were for a considerable period as many as 560 patients under treatment. They also adduced evidence to shew that during this period

the proportion of smallpox cases in the neighbourhood of the hospital was far larger than in other parts of the parish, and they called a number of medical witnesses, who stated that, in their opinion, the existence of the asylum, as carried on by the defendants, was a source of danger to the neighbourhood and to the plaintiffs in particular, owing to the probable spread of the disease by infection, to the effect of the dead-house, and also to the bringing to and from the asylum of the patients in ambulances, and the visiting of the patients by their relations in cases where death was apprehended. With regard to the plaintiff Sir Rowland Hill, some evidence was also given that patients within the grounds of the asylum were allowed to walk near to the fence which separated the asylum grounds from those belonging to Sir Rowland Hill so as to interfere with the safety of the latter. With regard to the plaintiff Fripp, he deposed to having perceived when in his own house a bad smell from the dead-house, whereby his family and others were compelled to leave, and that on a particular day in February, 1871, this smell was specially noticed by himself and his wife, and shortly after she sickened and was attacked by smallpox. He also stated, however, that about the same period Mrs. Fripp had examined an empty ambulance standing in the high road wherein a patient suffering from smallpox had been conveyed.

The defendants called a great number of witnesses, consisting of those who had the superintendence and personal management of the asylum, and also medical men, who stated that in their opinion no danger or disturbance of the plaintiffs' rights was occasioned by the asylum, and that it was built and carried on with all possible care and skill so as to avoid any evil consequences.

At the end of the case on both sides I left to the jury five questions, which were answered as follows:

1st. Was the hospital a nuisance occasioning damage to the plaintiffs, or either and which of them, per se?

2nd. Or by reason of the patients coming to, or going from, the hospital?

(A.) 1st and 2nd. It was a nuisance to each of the plaintiffs, per se, and by reason of the patients coming to, or going from the hospital.

3rd. Assuming that the defendants were by law entitled to erect and carry on a hospital, did they do so with all proper and reasonable care and skill with reference to the plaintiffs' rights?

It was argued (on broader and more intelligible grounds) that the defendants were not liable, because in all that they did they acted bona fide in the execution of a duty, cast upon the Local Government Board and themselves by a statute which required certain things to be done for the public welfare.

...

I am unable, upon what seems to me to be a fair construction of the statute and a proper appreciation of its meaning, to arrive at this conclusion..