Court of Appeals of Alabama, 1933.

25 Ala.App 540, 150 So. 709.


Agent of the Defendant came on to Plaintiff in a sexual manner while at work and while under the influence of whisky. He asked her to come behind the counter to “love her” and then also reached for her with his hands.

Procedural History

Judgment for plaintiff in the lower court, defendant appeals.


Has the tort of assault been committed if the defendant could not cause the battery being threatened?

Arguments for Both Parties

Plaintiff states that she jumped back out of fear of being pulled behind and forcibly engaged in unlawful sexual contact, and that she was verbally engaged with speech that threatened the same. Defendant states that he did not try to touch the Plaintiff, nor could he have possibly done so because of the width and the height of the counter in between them.


The court holds that the lower court did not err in its decision for the Plaintiff.


A tort of assault has been committed when there is an intentional, unlawful manifestation that leads the allegedly assailed to have a well-founded fear of imminent battery, coupled with the apparent present ability of the alleged assailant to effectuate that attempt- based upon the interpretation of a reasonable person.

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