
    Raefeldt, by guardian ad litem, Respondent, vs. Koenig, Appellant.
    
      January 30
    
    February 18, 1913.
    
    
      Assault and battery: Justifiable acts: "What may be shown under general denial: Improper conduct of counsel.
    
    1. The touching of another does not constitute an assault and battery unless done in an angry, revengeful, rude, or insolent manner, so as to render the act unlawful.
    2. If, as defendant testified in this case, plaintiff was about to take some of his goods and upon being requested to desist she refused, he was justified in taking her by the hand and leading her out of his store, using no excessive force.
    3. Such acts of defendant would not constitute an assault, and might properly be shown under a general denial.
    4. Persistent efforts of counsel to inject into a case matter which the court has ruled out as being immaterial, irrelevant, and harmful, should be met by the trial judge with prompt and emphatic disapproval and with suitable admonition to the jury to disregard it.
    5. Such conduct on the part of counsel may, of itself, necessitate a reversal.
    
      Appeal from fir judgment of the circuit court for Dodge-county : MartiN L. LuecK, Circuit Judge.
    
      Reversed.
    
    Eor the appellant there was a brief by North & Crowns, attorneys, and Burke & Lweck, of counsel, and oral argument, by Arthur J. Crowns.
    
    Eor the respondent there was a brief by Royal F. Clark and J. F. Malone, and oral argument by Mr. Clark.
    
   ViNJE, J.

Action for an assault alleged to have been committed upon tiie plaintiff by the defendant. The answer was a general denial. At the close of the testimony defendant asked leave to amend his answer by pleading the substance of the matters testified to by him. The court allowed the amendment, but, as plaintiff claimed surprise, only upon terms of a continuance and costs. Thereupon the defendant withdrew his amendment and the trial proceeded. Plaintiff testified, in substance, that she entered the store of the defendant about 8 o’clock on the evening in question, as she had often done before, talked for some time with one Nellie. Bloor and the clerk, Rose Miller, after which the two girls went out; that the defendant then came up to the front of the. store, looked out of the door, through the window thereof, and then asked her to come to the rear end of the store to have some candy. She told him she did not care for any, but he said she should come and have some anyway; that she then walked to the back end of the store and stopped beside the stove. The defendant went back of the counter and said she should step back there and see what kind she wanted. She told him any kind would do, but he said he had several kinds and told her to step back and see. Thereupon she stepped back of the counter to look at the candy; that the defendant then put his right arm around her and grabbed her right breast, causing her a little pain, and that he tried to get his arm down, so that he would come on the outside and have her on the inside; that she was perhaps dragged a few feet toward the rear of the store. •She tben. jerked away from bim, bit bim witb ber elbow, and walked out. Tbe defendant denied tbe statements made by tbe plaintiff as to wbat occurred in tbe store tbat evening, and testified tbat when tbe clerk and Nellie Bloor went out tbe plaintiff went to tbe peanut barrel and, finding tbat empty, sbe went back of tbe counter to tbe candy pails and reached into tbem; tbat be tben came down from tbe desk in tbe northwest corner in'the rear of tbe store, where be bad been, walked up to tbe counter, and said: “Mrs. Raefeldt, if there is anything tbat you want, I am here to get it for you, and if not, please come out from back of theretbat sbe tben turned up, ber nose and replied: “Don’t have to.” Whereupon be went back of tbe counter, took ber by tbe band and led ber out of tbe store; tbat sbe went along willingly and made no resistance whatever. At tbe time of tbe alleged assault plaintiff was a married woman eighteen years of age, and tbe defendant a married man fifty-four years old.

Tbe trial court directed tbe jury to return a verdict for the plaintiff, and submitted to tbem only tbe question of damages. Such direction was correct only upon tbe theory that defendant’s acts, as testified to by bim, constituted an assault It is manifest tbat if they did not, there was evidence which, if believed, conclusively negatived the charge of an assault. Respondent claims tbe acts testified to by tbe defendant could not be shown under a general denial, but only under a plea of justification, and cites Atkinson v. Harran, 68 Wis. 405, 32 N. W. 756, and Yeska v. Swendrzynski, 133 Wis. 475, 113 N. W. 959. It is true those cases are authority for tbe rule tbat in a civil action for assault and battery evidence of justification is not admissible under a mere general denial. But they do not bold tbat under a general denial evidence showing tbat no assault in fact took place is inadmissible. Tbat is tbe very issue raised by a general denial, namely, Did tbe defendant assault tbe plaintiff % An assault is an unlawful attempt, •coupled witb the apparent or real present ability, to do bodily harm to another. 3 Cyc. 1025; 1 Cooley, Torts (3d ed.) 278; Vosburg v. Putney, 80 Wis. 523, 50 N. W. 403; Degenhardt v. Heller, 93 Wis. 662, 68 N. W. 411; Donner v. Graap, 134 Wis. 523, 115 N. W. 125. Not every laying on of hands constitutes an assault. The attempt, or the force used, if it proceeds beyond the stage of a mere attempt, must be unlawful. The intention to do harm, or an unlawful intent, is of the very essence of an assault, and without it there can be none. Degenhardt v. Heller, supra; Donner v. Graap, supra; 1 Cooley, Torts (3d ed.) 278. To gently touch another for the purpose of doing a lawful act does not amount to an assault and battery. The touching of, or injury to, another must be done in an angry, revengeful, rude, or insolent manner so as to render the act unlawful, before it can constitute assault and battery. 1 Cooley, Torts (3d ed.) 281. If it be true, as defendant testified, that plaintiff was about to take some of his goods, and that upon being requested to desist she refused, he was justified in doing what he testified he did. Such acts on his part did not constitute an assault. No unlawful force was used. 1 Cooley, Torts (3d ed.) 291; Breitenbach v. Trowbridge, 64 Mich. 393, 31 N. W. 402. The trial court should therefore have submitted the ease to the jury to find whether or not there was an assault, and if so, the amount of plaintiff’s damages. Eor failure to do this, the judgment must be reversed. •

This disposition of the case renders it unnecessary to discuss a number of other assignments of error. We cannot forbear, however, to express our unqualified disapproval of the persistent efforts of plaintiff’s counsel to inject into the case highly prejudicial matter against the repeated rulings of the trial court Such conduct alone might necessitate the reversal of a case. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. When an attorney has obtained a ruling from the trial court in a form which fairly raises a question as to the admissibility of the evidence sought to be introduced, courtesy to the court should forbid a wilful repetition of the effort even though the evidence sought to he introduced is not clothed with innuendoes prejudicial to the other side. Much more should such effort cease when it is apparent that the offered evidence is ruled out because it is held to be immaterial, irrelevant, and harmful. • Efficient discharge of judicial duty also requires on the part of the trial judge prompt and emphatic disapproval of such conduct, with suitable admonition to the jury to disregard it, to the end that the real issues may be passed upon freed from irrelevant and prejudicial matter.

.. By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.  