– Sapp was convicted of assault in trial court
– Appealed by Western Union on the grounds that it was not an assault.
– Sapp was the agent of Western Union (Defendant). D was under contract to fix and repair clocks, in Hill’s (Plaintiff) place of business.
– Hill’s wife needed the clock fixed at 8:13pm, by 8:30 no one came, so she, over the phone, said that she was going to the D’s office. She then went to the office…D was there, sitting behind a very large counter, 4 feet 2 inches high.
– D said, “If you come back here and let me love and pet you, I will fix your clock.”
- Repeated this a couple of times, and then reached out at the plaintiff’s wife, trying to grab her, but did not touch her at all…
Was there an assault?
Assault: an unlawful attempt to commit a battery, incomplete by reason of some intervening cause; or, to state it differently, to constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstance as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.
Notwithstanding the height of the counter, it was shown that the D could have apprehended the Plaintiff, it need not matter, that at the current position, it was not possible…
Assault was upheld, but reversed on the grounds that Sapp was not working within the scope of his employment to get the company in trouble.