## Facts

- Western Union contracted to keep an electric clock in the plaintiff’s business in repair; when it needed attention, the issue was to be reported to Sapp, who would notify a specialist who did the repairs.
- Mrs. Hill reported the clock problem by telephone to Sapp and, when no one came, went to Western Union’s Huntsville office.
- Sapp, Western Union’s office agent, stood behind a high counter and had been drinking.
- Mrs. Hill testified that Sapp asked her to come behind the counter and, if she would let him “love and pet” her, he would “fix” her clock; he repeated the statement while reaching toward her.
- Evidence conflicted on whether, given the counter’s height and width, Sapp could physically reach Mrs. Hill; she moved back immediately.
- Sapp denied attempting to grasp her and disputed her account.
- The jury found for Hill on a claim seeking damages for an assault on Mrs. Hill, and Western Union appealed.

## Issues

1. Whether Sapp’s words combined with a reaching gesture could constitute an actionable assault, including whether he had an apparent present ability to carry out an imminent offensive touching.
2. Whether Western Union could be held vicariously liable for Sapp’s conduct under respondeat superior as within the line and scope of his employment.

## Decision

- The appellate court held that the evidence permitted a jury finding of assault because the testimony conflicted on Sapp’s apparent ability to touch Mrs. Hill and whether his conduct created a well-founded apprehension of imminent battery.
- The appellate court held that Western Union was not vicariously liable because, if an assault occurred, Sapp acted outside the line and scope of his employment and for purely personal reasons.
- Judgment for Hill was reversed and the case remanded.

## Legal Principles

- An actionable assault requires an intentional, unlawful offer or attempt to touch another in a rude, angry, or offensive manner that creates a well-founded apprehension of an imminent battery, coupled with an apparent present ability to carry it out if not prevented.
- Assault does not require actual contact; a battery is not necessary to complete an assault.
- Mere insulting words or a sexual proposition, without an accompanying assaultive act creating apprehension of imminent contact, is not independently actionable as assault.
- In assault, apparent present ability (as reasonably perceived) may control over actual ability; where evidence is conflicting, the existence of assault is for the jury.
- An employer is liable only for torts committed by an employee within the line and scope of employment and in furtherance of the employer’s business; purely personal, willful acts unrelated to assigned duties do not impose vicarious liability.

## Conclusion

The court recognized that a jury could find assault based on a proposition coupled with a reaching gesture creating reasonable apprehension of imminent offensive contact, but it reversed the verdict because the employee’s conduct, if tortious, was a personal frolic outside the scope of employment, eliminating respondeat superior liability for the employer.


W. Union Tel. Co. v. Hill, 150 So. 709 (Ala. Ct. App. 1933)