
    Nellie Clayton, Plaintiff, v. Theodore Keeler, Defendant.
    (Supreme Court, New York Trial Term,
    November, 1896.)
    1. Assault — What constitutes.
    A threat of bodily harm, accompanied by an uplifted fist or hand, or by a threatening gesture, with intent to strike, and sufficiently near to execute such designs, constitutes an assault. A mere menace,' unaccompanied by an attempt or threat to strike, is not an assault.
    2. Battery — What constitutes.
    A battery, as distinguished from an assault, is where the person is actually struck or touched in a violent, angry, rude ór insolent manner. Every laying on of hands is not a battery. Intention must be considered. The. mere touching or placing of hands upon -the person of another for the purpose of drawing attention is not a battery. To cpnstitute a battery, the intent to injure must concur with the use of unlawful violence to the person assaulted; but the slightest degree of force suffices to constitute violence, and the intended injury may be to the feelings as well as to the corporeal person.
    3. Same — Damages.
    For assault and battery, unprovoked and maliciously, willfully and wantonly committed, punitive damages may be awarded.
    Trial of issues in an action brought to recover damages for an alleged assault and battery.
    The material fact's are stated in the charge.
    William Douglas Moore, for plaintiff.
    David Welch, for defendant.
   Giegerich, J. (charging the jury).

Gentlemen of the Jury.— This action is brought to recover damages claimed in consequence of an alleged assault and. battery by the defendant upon the plaintiff.

The allegations of the complaint in substance are: That on.or about the 26th day of September, 1894, at the city of New York, the defendant violently assaulted the plaintiff, and struck, beat, pushed and thrust her violently against, upon and into a chair, thereby injuring and bruising her about her arms, limbs and body; that he shook his fist in her face, and cursed and swore at and threatened to kill her if she did not sign her name to a paper writing which he then and there produced and which it is alleged contained false and untrue statements; that the defendant then and there did, by threats, violence, force and duress, and by putting the plaintiff in fear of her life, compel her to sign her name to and upon said paper; and plaintiff further alleges that, by reason of the matters referred to, she was incapacitated in a great degree for the performance of her duties and business and suffered and still suffers great bodily and mental pain as well as a severe shock to her nervous system, and that she has been put to expense for medicine and medical attendance.

The answer of the defendant is a general denial of each and every allegation of the complaint, the substance of which you have heard.

The solution of the questions of fact presented by the pleadings and proofs is for you and you alone. It is my duty to instruct you as to the law which you will apply to the facts in the case as you may find them; for of the facts you are the solé judges. Your guide to the law is the charge of the court and not the statements of counsel.

At the conclusion of plaintiff’s case a motion was made for a. dismissal of the complaint, and it was denied by the court.

I charge you that the denial of that motion should not be taken by you as any indication that the plaintiff is entitled to recover; it was simply a ruling of the court that the plaintiff had presented such a state of facts as required consideration by a jury.

While- the law makes the parties litigant competent witnesses in this case, yet you have a right to take into consideration their relation to and interest in the result of your verdict, and the circumstances surrounding them, and give to their testimony such weight as in your judgment it is fairly entitled to.

You are the judges of the credibility and weight to be attached to the testimony of each and every Witness, and you are not bound to take the testimony of any witness as absolutely true if you are satisfied'from all the facts and circumstances proved on the trial that such witness is mistaken in'the matter testified to or that for any other reason her or his testimony is untrue or unreliable.

In determining the issues, you should take into' consideration the whole of the evidence and all the facts and circumstances proved on the trial, giving the several parts of the evidence such weight as you think they are entitled to.

You must decide this case upon the evidence adduced before you as you recollect it, and where statements of counsel ór the court are not in accord with your recollection, you must entirely disregard them.

It is, perhaps, not amiss, in view of the character of the testimony adduced and the summing up of counsel, to remind you that this is an action to recover damages for an alleged assault and battery and not one for divorce. ■

While it is your duty to' consider the evidence as to the alleged commission of adultery by the defendant’s wife,- as well as all other facts and circumstances proved on the trial, and to determine the Weight you believe should be given to the testimony of each witness who has been examined in that regard, you- should, however, not lose sight of the main question in this case, which is, whethei or not the defendant assaulted and beat the plaintiff, as alleged in the complaint.

In determining this question one way or the other, it does not, to my mind, necessarily follow from your verdict that you believe or disbelieve the charge made by the plaintiff against the defendant’s wife; for you may, in my opinion, consistently find from the evidence that such charge is entirely without foundation, and yet, that the defendant, in his zeal to protect his wife’s honor, did assault the plaintiff; or that there is some foundation for the story which it is claimed plaintiff circulated concerning the defendant’s wife, but that the defendant did not assault or beat the plaintiff.

As before remarked, this is an action to recover damages for an alleged assault and battery.

Every laying on of hands upon the person of another, and every blow or push, constitutes an assault and trespass, in respect of which an action for damages is maintainable, unless the act can be justified or excused. Every attempt, also, to offer with force and violence to do hurt to another, constitutes an assault, such as striking at a person with or without a weapon; holding up a fist in a threatening attitude sufficiently near to be able to strike; advancing with a hand uplifted in a threatening manner with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect. But as regards threatening gestures, if the parties at the time the gestures are used áre SO' far distant from each other that immediate contact is impossible, there is no assault. A mere threat, unaccompanied by an offer or threat to strike, is not an assault. The mere touching of a person without force or violence, for the purpose of drawing his attention to some matter or another, is not an assault unless it is done in a hostile or insulting manner.

A battery as distinguished from an assault is where the person of a man or woman is actually struck or touched in a violent, angry, rude or insolent manner. But every laying on of hands is not a buttery. The parties’ intention must be considered; for people will sometimes, by way of joke or friendship, clap a person on the back, and it would be ridiculous to say that every such case constitutes a battery.

To constitute a battery, the intent to injure must concur with the use of unlawful violence upon the person of the assaulted party, but the'slightest degree of force suffices to constitute violence, and the intended injury may be to the feelings of mind' of the latter; as well' as to the corporeal person.

Now, gentlemen, it will be your duty to carefully consider the evidence adduced, and to determine in the light of the law, as laid down by the court, whether or not the defendant did commit the alleged assault and battery upon the plaintiff.

The plaintiff testified that on the 26th of September,-. 1894, while she was stopping with one Mrs. Millie Getman, at No. 317 West One Hundred and Twenty-fourth street in this city, the defendant, together with his wife, and Mr. Yost,, his fathér-in-law, called there in the evening, and in the parlor of said house requested her to sign the paper writing in evidence, and before you, and which the plaintiff Says contains false and untrue statements'; that the plaintiff-at first refused to sign it; whereupon the defendant threátened to kill and waylay her if she persisted in such refusal; that the defendant then caught hold of her arm and thrust her against the sharp edge of a sofa or double chair, which was in the room, and struck her in the chest and pushed her, thus causing her to strike her head against the mantelpiece.

She further testified that after these occurrences she went to the basement below in order, to obtain ink; that she returned 'to the parlor with the same, and, under threats of violence by the . defendant, signed the paper in the presence of the persons before named, and also Mrs. Millie Getman, and she claims that her 'brother was coerced into signing the paper as a witness under similar threats of bodily harm made by the defendant. Hpon .cross-examination, the plaintiff testified that neither she nor any one upon' the occasion referred to made any outcry.

Mrs. Getman testified that she.was present during the alleged transaction; that plaintiff at first refused to sign the paper; that when plaintiff got up to get the ink the defendant took hold of her and threw her into a sofa or chair, causing her to strike upon her spine; that when plaintiff got-up the defendant again pushed her into another chair; that she was thus made to strike her head against the mantelpiece; that the defendant also struck the plaintiff on the chest, and that after these occurrences the plaintiff obtained ink from the basement below and upon her return to the parlor where these persons were assembled, the plaintiff, under threats of bodily harm made by the defendant, signed -the paper referred to, and that plaintiff’s brother, also under threats of violence by the defendant, signed the paper as a witness.

Eugene Olayton, a brother of the plaintiff, testified that the latter signed the paper under threats of violence by the defendant, and that he, under like threats, was' compelled to sign it as a witness.

Frederick Getman. testified that he went to the parlor from the apartments below because of the noises he heard issuing therefrom, that he saw the defendant shake his fist at the plaintiff and threaten to kill and waylay her if she did not sign the paper; that the plaintiff had just finished signing the paper when he got there; that after the plaintiff had signed the paper, the plaintiff’s brother was coerced by threats made by the defendant into signing it as a witness. Now, gentlemen, if the resume of the testimony which I have just given you is not in accord with your recollection you will entirely disregard it and adopt your own memory.

The testimony adduced on the part of the defendant is diametrically opposite to that produced by the plaintiff.

The defendant, his father-in-law, Mr. Charles A. Yost, and the wife of the defendant, testified in substance: That the plaintiff voluntarily signed the retraction in the basement of the house, away from the defendant and the persons who accompanied him, and not in the parlor in their presence, as claimed by her; that her brother likewise voluntarily signed the paper as a witness, without any threats or coercion on the part of the defendant, and that the latter did not assault or beat her, or threaten her with bodily harm while seeking to obtain her signature to the paper in question. And it is claimed by the defendant that the story of the plaintiff regarding the defendant’s wife and the alleged assault and battery is a pure fabrication, the result of a diseased imagination or disordered mind, producing a mania for imputing unchastity to others; and furthemore, that the plaintiff, in making the charge against the defendant, as well as the reflections against the defendant’s wife and Mr. Luerson, was actuated solely by malice, because of an investigation made relative to the alleged seduction of plaintiff’s sister by her uncle, and also because of her discharge from the defendant’s service.

In passing upon the credibility of the parties to the suit and the witnesses called by them as to the main issue in this action, you will also take into consideration the testimony of the plaintiff as to what transpired at the defendant’s flat on the Saturday night preceding the alleged assault and battery, during the defendant’s absence therefrom; the causes which led to her leaving the defendant’s employ; her version of the episode with respect to her sister; her version of the conversations had with the defendant, his wife or Mr. Luerson; her denial of Mr. Luerson’s testimony, that he informed her that her statement as to the alleged seduction of her sister was a falsehood, and her denial of malice against the defendant, his wife dr Mr. Luerson. Y on will also consider the testimony of Mrs. Irene Banhan as to the-plaintifFs1 alleged declaration that she voluntarily signed the retraction and that the statements made by her regarding the defendant’s wife were untrue; the denial of Mr. Luerson-of criminal intimacy with the defendant’s wideband his version of the conversations.had with the plaintiff; the testimony of Dri Carman, the defendant’s family physician, as to the illness of the defendant’s wife during the period in question and his advice to her to abstain from the marital relation; the testimony of the defendant’s wife as to conversations with the plaintiff before and after the Saturday night in question, as well as her alleged. illness, her conduct pursuant to her physician’s advice, her positive and unequivocal denial of the charge of criminal intimacy and all her testimony with respect to the transaction; the diagrams offered in evidence by the respective parties and the testimony of the witnesses pertaining thereto; the evidence as to what- transpired when the defendant, Ms wife and his father-in-law left the house of Mir. Getman on the evening of the day when the alleged assault took place; and all the other evidence adduced upon the trial.of this cause.

After giving careful consideration'to all the facts and circumstances proved on the trial and after having heard the versions given by the respective counsel, it is for you to say which side has given the most credible testimony and to determine where the truth lies.

Now, .gentlemen, you have heard a direct conflict of evidence between the plaintiff and the witnesses' called by her and before named, on the one hand, and the defendant and the witnesses called in his behalf, on the other, respecting the vital issue in this case, viz., whether or not the defendant did assault and beat the plaintiff as alleged, and it is apparent that such conflict cannot be the result of defective recollection. How, then, are you to decide this case? You are to look at the facts and circiunstances surrounding the parties litigant and the witnesses called by them, their manner of testifying, what they have testified to, the probability or improbability of their several statements, and all those little mdicAa of truth or falsity; drawing therefrom such inferences as you think proper,, and- determining which side you believe.

If you believe from the evidence that any .witness, has willfully sworn falsely on this trial as to any matter or thing material to the issues in this case, then you axe at liberty to disregard his or her entire testimony. If, however, you find from the entire evidence that the testimony of such witness, or any part thereof, is corroborated by facts and circumstances proved on the trial, such corroborating circumstances may be considered by you and you may rely upon such testimony if you feel justified in placing confidence in it; but you are not bound to do so.

The burden of proof is upon the plaintiff, and it is for her to prove her case by a fair preponderance of the evidence.

A preponderance of evidence, in my opinion, means that the testimony adduced by one side is more credible and conclusive than that of the other; it is not alone determined by the number of witnesses testifying to a particular fact or state of facts.

If you find that the evidence is evenly balanced so that it does not preponderate in favor of one side or the other, your verdict will be in favor of the defendant.

If you find from the evidence, and under the instructions of the court, that the defendant did not assault or beat the plaintiff, your verdict will be in his favor.

If you find that the defendant did assault or beat the plaintiff, you will find in her favor, notwithstanding that you may also find that she circulated false and slanderous statements concerning the chastity of the defendant’s wife; for the defendant would under no circumstances be justified in taking the law into his hands, no matter how just the provocation caused by the plaintiff.

Howsoever much we may regard with admiration the conduct of the defendant in protecting his wife’s honor, it should, nevertheless, be borne in mind that the alleged conduct of the plaintiff, no matter how reprehensible you may find, from the evidence, it was toward the defendant’s wife, cannot, under any circumstances, justify an assault or battery upon the plaintiff by the defendant.

The defendant had a right to request the plaintiff to sign the retraction, and no matter how earnest' his manner was toward the plaintiff for the purpose' of inducing her to sign it, you will not be justified in rendering a verdict in plaintiff’s favor unless you are satisfied that she has established by a fair preponderance of the evidence that the defendant either threatened her with bodily harm ;and advanced toward her with uplifted fist or outstretched hand, threateningly and with intent to strike, and sufficiently near to be able to execute such designs, or that he committed a battery upon the plaintiff with intent to injure her.

The mere laying on of hands is not a battery. The party’s intention must be considered, and if you. find that the defendant merely' touched or placed his hands upon the plaintiff for the purpose of drawing her attention to some matter, your verdict will be in favor of the defendant.

If you find from the evidence.and under the instructions of the court that the defendant merely made a threat to do bodily harm to the plaintiff, but did not accompany it with threatening gestures and sufficiently near to be able to strike her, your verdict will be in fávor of the defendant.

If you find from the evidence that the defendant merely outstretched his hand or. hands, or made other gestures, to the plaintiff, in order .to attract her attention, or to. induce her to, voluntarily remain in the room with him, and without any threats of bodily harm, your verdict will be in favor bf the defendant.

If you find that the injuries which the plaintiff claims to have sustained were the result of unavoidable accident, your verdict, will be in favor of the defendant.

If you find from the evidence and under the instructions of the court that the defendant made threats of bodily harm to the plaintiff, accompanied by an uplifted fist or hand, or by a threatening gesture, with intent to strike, and sufficiently near to be able to strike her, your verdict will be in favor of' the plaintiff.

If you find that from the entire evidence and under the instructions of the court that the defendant touched, pushed or struck the plaintiff in a violent, rude, angry or insolent manner -with intent to injure her, your verdict will be in favor of the plaintiff.

If you believe from the evidence and under the instructions of the court that the plaintiff is entitled to recover, you will, in that event, pass to a consideration of the question of damages. In assessing the damages you are at liberty to take into account the extent of plaintiff’s injuries, so far as they have been shown by the evidence, the pain and suffering, both mental and physical, endured by her, if any, in consequence of such injuries, and which you believe from the evidence she will with reasonable certainty endure in the future; the personal insult and indignity caused by and attendant upon the alleged battery; the loss of earnings and the costs of medical attendance, if such loss of services and costs of medical attendance have been proved to your satisfaction, and award such damages as you think proper and right in view of all the facts and circumstances proved on the trial. The circumstances of time and place as to when and where the alleged assault and battery was committéd and the degree of personal insult should he considered by you in estimating the offense and the amount of damages to be awarded. Besides a mere recompense for actual injury, in case you find that the assault and battery was unprovoked by the plaintiff and was maliciously, willfully and wantonly committed upon the plaintiff, you may award her exemplary or punitive damages. They are allowed as a punishment of the defendant and as a warning to others against committing a like offense, and if you conclude from the evidence, and under the instructions of the court, that the defendant has exposed himself to the penalty of exemplary damages, you may award such an amount as, in your sound discretion, you may think right and proper.

If you conclude that the plaintiff is not entitled to punitive damages, you will, in that event, award her such a süm as will be a fair and just compensation for the injury she suffered from the assault and battery. ■

This case is of importance not only to the parties concerned, but to 'the public, for it reaches beyond those immediately interested in the result of your verdict and touches the fundamental principles of civil liberty, upon which our social superstructure is built. I, therefore, beg that you will decide it without sympathy, prejudice or passion, as I believe you will. You should not withhold justice from the plaintiff merely because she comes from the lower walks of life, nor should you inflict an injustice on the defendant for no reason other than that conditions may have made his social position, in life superior to hers.

I deem it proper before you retire to deliberate upon your verdict to thank you sincerely for'the strict attention paid by you to the proceedings, as well as for the exemplary patience exhibited by you throughout this lengthy trial.

And you have cause for gratulation, gentlemen, on having had before you counsel who, while exhibiting just and commendable zeal in behalf of their respective clients, have not needlessly extended the case beyond its necessary limits. Your patient bearing justifies me in the belief that you will discharge your duties — the highest that falls to the lot of a citizen, under our form of government — conscientiously, considerately and carefully.

The jury thereupon retired, and returned a verdict in favor of defendant.  