C. J. BRYSON, APPELLANT,
v.
ROLLIE F. SWANK, APPELLEE
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A customer who struck a store employee during an argument appeals a jury verdict awarding compensatory and punitive damages for assault and battery. The court affirms, holding that assault and battery is an intentional tort where the doing of the act itself supplies proof of malice necessary for punitive damages, regardless of any provocation.
The court held that assault and battery is an intentional tort where the doing of the act supplies proof of the malice necessary to support punitive damages. Mere provocation by the plaintiff does not negate the defendant's liability for punitive damages in assault and battery cases.
“there are some intentional torts, one of which is assault and battery, where the doing of the act supplies the proof of malice”
Establishes the key principle that assault and battery is a special category of intentional tort where malice is implied from the act itself
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Join FLexlaw to unlock all legal intelligenceAppellant Bryson was a customer returning merchandise at a retail store where appellee Swank worked. The parties engaged in an argument, during which …
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The defendant appeals from a judgment based on a jury verdict awarding the plaintiff $3,775 compensatory damages and $5,000 punitive damages in an action for assault and battery.
Appellant was a customer at the retail store where appellee was employed. Appellant was returning some merchandise, and appellee was waiting on the appellant. It appears that the parties got into an argument. As a result, appellant struck appel-lee in the face causing him to fall to the floor and hit the back of his head upon a table.
Appellant, inter alia, claims that the trial court erred in instructing the jury that the plaintiff was entitled to recover punitive damages.
Even though the act was somewhat provoked by the appellee’s strong words, this does not prove that the act was not malicious, thereby negating appellee’s right to punitive damages.1 It is true, as appellant contends, that the mere proof of any intentional tort does not ipso facto entitle the plaintiff to punitive damages, but there are some intentional torts, one of which is assault and battery, where the doing of the act supplies the proof of malice. Such a situation arose in the case of Anderson v. Maddox, Fla.1953, 65 So.2d 299, where a judge struck a lawyer once with his fist after the lawyer had called the judge “a damn liar”.
The Supreme Court reversed the summary judgment which had been granted to the judge, dismissing the lawyer’s complaint for assault and battery and held:
“We think the appellant was entitled to a determination by a jury of his actual damages, and, if he proved any to the jury’s satisfaction, to have the jury fix the amount of punitive damages as well.” [Emphasis supplied.] 65 So.2d at 301.
It appears to us that the facts of the instant case are such as to require the determination of this case to be controlled by Anderson v. Maddox, supra.
It is evident that in the Anderson case there existed the same “provocation” as is argued exists here, but the court ordered the plaintiff entitled to punitive damages, thereby implying the malice necessary from the striking of the blow.
We have considered appellant’s other points, and deem them to be without merit.
Accordingly the judgment appealed is affirmed.
Affirmed.
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Citator
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The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)…ommitted an intentional assault and battery, without legal justification, the law implies the presence of malice, and punitive damages may, in proper circumstances, be recovered. Holland v. Glass, 213 So. 2d 320 (Fla. 4th DCA 1968); Bryson v. Swank, 166 So. 2d 833 (Fla. 3rd DCA 1964); Anderson v. Maddox, 65 So. 2d 299 (Fla.1953). The security guard in the present case.committed a battery on Mr. Canty. The jury apparently chose to believe Mr. Canty, who testified that the guard actually grabbed the colostomy b…
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Wrains v. Rose, 175 So. 2d 75 (Fla. 2d DCA 1965)…ntentional tort does not ipso facto entitle the plaintiff to punitive damages “but there are some intentional torts, one of which is assault and battery,. [*79] where the doing of the act supplies the proof of malice.” Bryson v. Swank, Fla.App.1964, 166 So. 2d 833, 834. See also Anderson v. Maddox, Fla.1953, 65 So. 2d 299, 301. Although malice is an essential element in malicious prosecution, deliberate violence or oppression are not prerequisites for assessment of exemplary damages in cases purely in tort w…
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Jefferson Stores, Inc. v. Caudell, 228 So. 2d 99 (Fla. 3d DCA 1969)…Anderson v. Maddox, Fla.1953, 65 So. 2d 299; Farish v. Smoot, Fla.1952, 58 So. 2d 534; Wrains v. Rose, Fla.App. 1965, 175 So. 2d 75; Doral Country Club, Inc. v. Lingren Plumbing Co., Fla.App. 1965, 175 So. 2d 570; and Bryson v. Swank, Fla.App.1964, 166 So. 2d 833. We have considered the defendant’s other points for reversal and find them to be without merit. The final judgment is Affirmed.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308 (Fla. 1936)
- Anderson v. Maddox, 65 So. 2d 299 (Fla. 1953)