Western Union Telegraph Co. v. Hill

Nature of the Case

This was an action to recover damages for an assault.

Facts

Sapp (D) was an employee of Western Union (D). Mrs. Hill (P) claimed that when she came to the office for a clock repair, Sapp attempted to put his hand on her and requested that she come behind the counter and permit him to love and pet her. Hill claimed that Sapp then made a grab for her shoulder over the counter.

Sapp introduced testimonial and physical photographic evidence that the counter was 4′ 2′ high and came to his armpits and the end of his fingers just reached to the outer edge of the counter. Sapp had had two or three drinks and was still feeling the effects of the whiskey.

Despite the contradicting stories of each party it was proven that it was unlikely that Sapp could have reached Hill over the counter. Judgment was rendered for Hill and the defendants appealed on the grounds that there was no apparent ability to carry out his threat.

Issue

Must a plaintiff show that the defendant had the actual ability to carry out his threat at the time it was made?

Holding and Rule of Law

No. An assault requires that the actor have the apparent present ability to effectuate the attempt if not prevented.

The actual ability of the defendant to cause the harm threatened in an assault is not a requirement of the prima facie case. Even so, there must be apparent present ability to cause an offensive or harmful touching.

Based on the evidence presented there is enough evidence for the jury to find that Sapp had the apparent ability to effectuate the attempt. While Sapp presented evidence to the contrary, this issue was a question of fact for the jury to decide.

Disposition

Judgment affirmed with regard to Sapp, reversed with regard to Western Union under vicarious liability because Sapp had not acted within the scope of his employment.