Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
2. Assault
I. de S. & Wife v. W. de S. Assizes, 1348 or 1349 1
THORPE, C.J.
I de S and M, his wife, complain of W de S concerning this that the said W, in the year
etc., with force and arms [vi et armis] did make an assault upon the said M at S and beat her. And
W. pleaded not guilty. And it was found by verdict of the inquest that the said W. came in the
night to the house of the said I., and would have bought some wine, but the door of the tavern was
closed; and he pounded on the door with a hatchet, which he had in his hand, and the female
plaintiff put her head out at a window and told him to stop; and he saw her and aimed at her with
the hatchet, but did not hit her. Whereupon the inquest said that it seemed to them that there was
no trespass, since there was no harm done. THORP, C. J. There is harm done, and a trespass for
which they shall recover damages, since he made an assault upon the woman, as it is found,
although he did no other harm. Wherefore tax his damages, &c. And they taxed the damages at
half a mark. THORP, C.J., awarded that they should recover their damages, &c., and that the other
should be taken. Et sic nota, that for an assault one shall recover damages, &C.
Notes
1. The action for assault. The case of I. de S. is an early recognition of legally protectable
interests in an emotional state—the emotional state of being free of certain kinds of fright.
Prosser described the assault action as recourse for unlawful “touching of the mind”:
The interest in freedom from apprehension of a harmful or offensive contact with
the person, as distinguished from the contact itself, is protected by an action for the
tort known as assault. No actual contact is necessary to it, and the plaintiff is
protected against a purely mental disturbance of this distinctive kind. This action,
which developed very early as a form of trespass, is the first recognition of a mental,
as distinct from a physical, injury. There is a “touching of the mind, if not of the
body.”
W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE
LAW OF TORTS § 10, at 43 (5th ed. 1984).
2. Everyday frictions? Even if the action of assault has been recognized at common law for
centuries, it has always been hedged in by limits. Not every obnoxious or hurtful touching of the
mind gives rise to an assault action. Courts normally do not allow assault remedies for the
ordinary insults and frictions that accompany everyday life. In Bollaert v. Witter, 792 P.2d 465
(Or. App. 1990), for example, an Oregon State appellate court ruled against a party’s claims of
1
Y.B. Lib.Ass. folio 99, placitum 60 (Assizes 1348), translated from the Law French in, JAMES BARR AMES,
SELECT CASES ON TORTS 1 (1874).
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