tis," and in a more limited degree to school teachers.80 This right does not belong to ministers or priests.81 It has been held that the superintendent of a poorhouse has the right to inflict moderate personal punishment upon the immates of the house,82 but the tendency of modern law is towards the restriction of such right. Masters of ships, while at sea, also have the right to inflict moderate correction upon their sailors, in order to preserve the discipline of the ship.88 85 84 Finally, ordinary contact with another in a crowd, or a mere touching in earnest discourse, or to attract attention for a lawful purpose, or contact in any lawful game, or similar kinds of contact with the body of another, do not constitute batteries. SECTION 20. MUTUAL ASSAULTS. Circumstances may arise where each of two persons may have an action for assault and battery against the other. This may happen where two persons are engaged in an unlawful act, as a prize fight; or where a person who is wrongfully assaulted repels the attack with an unnecessary degree of force, and thus becomes a trespasser himself as to such excess.86 70 Snowden vs. State, 12 Tex. App., 105, 41 Am. Rep., 667; Gorman vs. State, 42 Tex., 221. "A schoolmaster has, in general, no right to punish a pupil for misconduct committed after the dismissal of school for the day, and the return of the pupil to his home, yet he may, on the pupil's return to school, punish him for any misbehaviour though committed out of school which has a direct and immediate tendency to injure the school or subvert the master's authority." Lauder vs. Slaver, 76 Am. Dec., 156. Misspelling a word and refusing to try again, will not justify a severe punishment by a teacher. Gardner vs. State, 4 Ind., 632. 81 Donnelley vs. Territory (Ariz., 1898), 52 Pac., 368. 82 State vs. Neff, 58 Ind., 516. 84 Turbervell vs. Savage, 2 Keb., 85 Coward vs. Baddeley, 4 H. & N., 478. 88 "In such an altercation both parties are in the wrong and both, it has been held, can maintain an action against the other, the party originally as SECTION 21. FALSE IMPRISONMENT. The second great class of trespasses against the person consists of cases of false imprisonment.87 False imprisonment is any unlawful detention of any person. In an action for damages for false imprisonment the motives of the defendant are not material, except in mitigation of damages. In McConnell vs. Kennedy 88 the court said: "In such an action it does not seem to us that the motive with which the prosecution is instituted constitutes any element of the cause of action. If a prosecution is commenced against a party and he is arrested without lawful authority, the person who procures such arrest, no matter how pure or laudable may have been the motives of the prosecutor in instituting the prosecution, may be liable to an action for false imprisonment, because he caused a citizen to be sailed because of the unlaw- Foundation of Legal Liability, Vol. I, p. 7. Dole vs. Erskine, 35 N. H., 503; Gratton vs. Glidden, 84 Me., 589; Slone vs. Slone, 2 Met. (Ky.), 339. 87 "Forcefully to deprive a man of the freedom to go whithersoever he may is clearly a trespass. False imprisonment was indeed one of the first trespasses recognized by the Common law (Bracton's Note Book II, p. 314 (1229), pl. 465). A laying of violent hands upon the person and an actual forceful deprivation of liberty is the element undoubtedly at the root of liability in this wrong. In other words, the typical original imprisonment involved a battery. But the wrong was not destined to be restricted to such narrow bounds. Just as the assault represents an extension of the conception of harm involved in the battery in one direction, so the wrong of imprisonment represents the extension of that conception in another direction. Accordingly it has been settled that actual physical constraint or physical contact is not necessary to make an imprisonment. Coercion of any kind, as where the person yields without resistance to superior force or to authority, is enough. But some form of coercion is essential. One who is prevailed upon by false representations to go and remain at a particular place is not imprisoned, unless, perchance, force or intimidation be used to prevent departure." Street's Foundation of Legal Liability, Vol. I, pp. 12-13. 88 29 S. Car., 180. restrained of his liberty without lawful process, and his motive has nothing to do with the case, except, perhaps, as an element to be considered in measuring the damages. That the arrest was made by mistake is not a defense to an action for false imprisonment.89 The provocation given to the defendant is also no defense." SECTION 22. FALSE IMPRISONMENT, COMPARED WITH MALICIOUS PROSECUTION. 90 The actions of false imprisonment and malicious prosecution have often been confused together," but 80 Sugg vs. Pool, 2 Stew. & P., 196; Landrum vs. Wells, 7 Tex. Civ. App., 625. 90 Grace vs. Dempsey, 75 Wis., 313, where it was held that a letter written to the defendant charging him with crime was no justification of an unlawful imprisonment committed under the provocation of such letter. "The following cases illustrative of this confusion are culled in American & Eng. Enc. of Law, Vol. 12, p. 731: "In Brown's Law Dictionary (2nd ed), title False Imprisonment, it is stated with reference thereto; 'For the success of the action it is necessary to prove both malice on the part of the defendant and the absence of all reasonable or probable cause and, of course, that the accused was acquitted.' It is evident here that false imprisonment has been confused with malicious prosecution, for, as is shown in other parts of this article, none of the above-stated essentials is necessary for the maintenance of an action for false imprisonment." Another instance of confusion is presented by the case of Perry vs. Sutley (Supreme Ct.), 18 N. Y. Supp., 633, in which the court begins its opinion by saying: "The action was for false imprisonment." Then further: "The rules of law applicable to actions of this character are very simple and familiar. There must be want of probable cause, and malice, but if the former is established the latter may be inferred therefrom." Thus it appears that either the action was not false imprisonment, but more in the nature of an action for damages for malicious prosecution, or the court misstates the rules of law applicable thereto. In fact, it further appears that the arrest of the plaintiff was under legal process, valid and regular, and the point upon which the case was turned was whether or not there was probable cause for the prosecution, the conclusion being that under the circumstances it was a question of fact for the jury. And also in the case of Brown vs. Chadsey, 39 Barb. (N. Y.), 262, the court said with reference to an action for false imprisonment; "Malice in the defendant will be inferred, so far at least as to sustain the action." Likewise in another case the action, though stated in the opinion of the court to be one for false imprisonment and malicious prosecution, seems to have been regarded only in its latter aspect and a verdict was directed for the defendent, al 92 the two actions nevertheless present striking differences. These differences are shown by the following decisions: In the case of Hobbs vs. Ray 22 it was said with reference to the distinction between false imprisonment and malicious prosecution: "These actions are quite distinct from each other. An action of trespass and false imprisonment lies for an arrest or some other similar act for an arrest or some other similar act of the defendant, which, as is said, 'upon the stating of it is manifestly illegal;' while malicious prosecution, on the contrary, lies for a prosecution which upon the stating of it is manifestly legal." In the case of McConnel vs. Kennedy 93 in distinguishing between an action for false imprisonment and one for malicious prosecution, the court said: "It is quite true that one arrested and restrained of his liberty even under lawful process, may have a cause of action if it is alleged and shown that the prosecution was malicious and was without probable cause and has terminated; but that is a different cause of action and depends upon different allegations and proofs, and the action for malicious prosecution must not be confounded with an action for false imprisonment." process of law. He must prove want of probable cause, and malice is presumed. The defendant may, however, disprove malice. In an action for malicious prosecution the plaintiff must prove that the process was regular, and the arrest under it lawful, or by lawful authority acting for itself, and must also prove a want of probable cause and that the same was malicious. Here malice is not presumed, as in the action for false imprisonment, but must be proven." 92 18 R. I., 84. 93 29 S. Car., 180. In the case of Herzog vs. Graham" the court said with reference to false imprisonment and malicious prosecution: "The distinction is that false imprisonment is some interference with the personal liberty of the plaintiff which is absolutely unlawful and without authority. Malicious prosecution is in procuring the arrest and prosecution under lawful process on the forms of law, but from malicious motives and without probable cause." A clear and concise statement of the distinction under discussion is to be found in the case of Colter vs. Lamb 95 wherein it was observed that if the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extrajudicial, without legal process, it is false imprisonment. SECTION 23. ELEMENTS OF FALSE IMPRISONMENT. The two constituent elements of false imprisonment are: (1) the detention or restraint; and (2) the unlawfulness of such detention or restraint.90 SECTION 24. THE DETENTION OR RESTRAINT. 97 The confinement need not be in a jail; "7 it may be in a private house, or even outdoors, if the party is deprived of freedom of movement.98 Where a person who had been fined for a violation of a municipal ordinance was wrongfully compelled to pay the fine by manual labor on the streets, it was held that there could be a recovery for false imprisonment." To constitute false imprisonment, however, the person must be completely deprived of freedom of movement; 949 Lea. (Tenn), 152. 95 35 Ind., 285, Am. Rep., 735. Rich vs. McIrney, 103 Ala., 345; 97 Warner vs. Riddiford, 4 C. B. M. S., 180. 98 Floyd vs. State, 12 Ark., 43, 54 99 Torbett vs. Lynch, 67 Ind., 474. 1 |