DENNIS, Justice.

This personal injury case presents the issues of whether an. electrical shock administered to a worker by his employer’s chief executive officer as a practical joke constitutes an intentional tort, and if so, whether the employee may recover damages for the unintended and unforeseeable impairment of his occipital nerve which resulted from the intentional tort. The trial court found that an intentional tort had not been committed because no injury was intended, held that the employee’s exclusive *390remedy was in worker’s compensation, and dismissed the damage suit. The court of appeal affirmed for the same reasons. We reverse. A harmful or offensive contact with a person, resulting from an act intended to cause him to suffer such a contact, is a battery. A defendant’s liability for the harm resulting from a battery extends to consequences which the defendant did not intend and could not reasonably have foreseen.

Plaintiff, Ruben Caudle, was employed as a salesman at Betts Lincoln-Mercury in Alexandria, Louisiana. An office Christmas party was planned for the afternoon of December 23, 1983. Shortly before the party some of the employees engaged in horseplay with an electric automobile condenser. They discovered that the condenser could be charged by touching one end to a car’s sparkplug wire and turning the engine over. Once charged, the condenser would deliver a slight electric shock when touched at both ends. Several, employees played catch with the charged condenser. Peter Betts, the president and principal shareholder of the dealership, joined in the activity. Although the facts were disputed, the trial court found that Betts shocked the back of Caudle’s neck with the charged condenser and chased Caudle with it until he escaped by locking himself in an office.

Caudle testified that following the incident he developed a headache and left the party early. In the following months Cau-dle had frequent and severe headaches and passed out thirty to forty times. Conservative treatment in the form of nerve blocking shots was ineffective in permanently correcting these problems. Surgery severing the occipital nerve, performed on July 23, 1984, finally alleviated plaintiff’s headaches and fainting spells. The only residual effect of the surgery is a slight numbness on the right side of plaintiff’s head.

Caudle filed suit against Betts individually and against Betts Lincoln-Mercury, Inc. seeking damages for past pain and suffering, lost motion and enjoyment of life, past medical expenses, loss of earnings, and future damages for the permanent paralysis in his right scalp. After a bench trial, the district court found that Mr. Betts intended to shock Mr. Caudle but did not intend to injure him beyond a momentary, unpleasant jolt. The district court dismissed the plaintiff’s suit and the court of appeal affirmed, 502 So.2d 146.

The Louisiana Worker’s Compensation Act provides for compensation if an employee receives personal injury by accident arising out of and in the course of his employment. La.R.S. 23:1031. As a general rule, the rights and remedies granted to an employee therein are exclusive of all rights and remedies against his employer, any officer or principal of the employer, or any co-employee. La.R.S. 23:1032.1 However, an exception to this rule provides that nothing therein shall affect the liability of an employer, principal, officer, or co-employee resulting from an “intentional act”. Id.

In interpreting the statute, this court has held that compensation shall be an employee’s exclusive remedy against his employer for an unintentional injury covered by the act, but that nothing shall prevent an employee from recovering from his employer under general law for an intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981). We concluded that in drawing a line between intentional and unintentional acts *391the legislative aim was to make use of the well established division between intentional torts and negligence. Id. at 480.

In Bazley this court briefly explained the basic difference between an intentional tort and a negligent act but did not profess to set forth a complete exposition of either branch of tort law. Intentional tort law encompasses far more than could be explicated reasonably in a single opinion. See, e.g., Restatement (Second) of Torts, American Law Institute § 1-48 (1965); W. Prosser and W. Keeton, The Law of Torts, § 8-12 (5th ed. 1984); F. Harper and F. James, The Law of Torts, § 3.1-3.9 (2nd ed. 1986), and, generally, Louisiana Digest Titles, Assault & Battery, False Imprisonment. Consequently, when an employee seeks to recover from his employer for an intentional tort, a court must apply the legal precepts of general tort law related to the particular intentional tort alleged in order to determine whether he has proved his cause of action and damages recoverable thereunder.

The present case is one in which the plaintiff employee sought to recover damages as the result of an intentional tort, a battery committed upon him by his employer’s principal owner and chief executive officer. The trial court found that the chief executive had intentionally shocked the employee with an auto condenser as a practical joke without the employee’s consent or approval but that the serious injury to the employee’s occipital nerve which resulted was neither foreseeable nor intentional. From this the trial court concluded that no intentional tort occurred, and the court of appeal affirmed its judgment. Consequently, in reviewing those rulings we must decide whether a battery was committed and, if so, whether damages are recoverable under battery for the unintended and unforseeable occipital nerve injury.

A harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact, is a battery. Cage v. Wood, 484 So.2d 850 (La.App. 1st Cir.1986); Ross v. Sheriff of Lafourche Parish, 479 So.2d 506 (La.App. 1st Cir.1985); Vascocu v. Single-tary, 404 So.2d 301 (La.App. 3d Cir.1981); Ashland Oil, Inc. v. Miller Oil Purchasing Co., 678 F.2d 1293 (5th Cir.1982); Restatement (Second) of Torts, American Law Institute § 13 (1965); F. Stone, Louisiana Civil Law Treatise, Tort Doctrine § 124-130 (1977); W. Prosser and W. Keeton, The Law of Torts, § 9 (5th ed. 1984); F. Harper and F. James, The Law of Torts, § 3.1-3.3 (2nd ed. 1986). The intention need not be malicious nor need it be an intention to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent. Karl J. Pizzalotto, M.D., Ltd. v. Wilson, 437 So.2d 859 (La.1983); Coppage v. Gamble, 324 So.2d 21 (La.App. 2d Cir.1975); F. Stone, Louisiana Civil Law Treatise, Tort Doctrine, § 125-127 (1977); F. Harper and F. James, The Law of Torts, § 3.3 (2nd ed. 1986).

The original purpose of the courts in providing the action for battery undoubtedly was to keep the peace by affording a substitute for private retribution. F. Stone, Louisiana Civil Law Treatise, Tort Doctrine, § 125 (1977). The element of personal indignity involved always has been given considerable weight. Consequently, the defendant is liable not only for contacts that do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting. W. Prosser and W. Keeton, The Law of Torts, § 9 (5th ed. 1984); Harrigan v. Rosich, 173 So.2d 880 (La.App. 4th Cir.1965).

The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Restatement (Second) of Torts, American Law Institute § 13, (comment e) (1965). Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff’s own good. W. Prosser and W. Keeton, The Law of Torts, § 9 (5th ed. 1984); see Newman v. Christensen, 149 Neb. 471, 31 N.W.2d 417 (1948); Keel v. *392 Hainline, 331 P.2d 397 (Okla.1958); Garratt v. Dailey, 49 Wash.2d 499, 304 P.2d 681 (1956); Pachucki v. Republic Ins. Co., 278 Wis.2d 703, 278 N.W.2d 898 (1979); and Lambertson v. United States, 528 F.2d 441 (2nd Cir.1976).

Bodily harm is generally considered to be any physical impairment of the condition of a person’s body, or physical pain or illness. Restatement (Second) of Torts, American Law Institute § 15 (1965). The defendant’s liability for the resulting harm extends, as in most other cases of intentional torts, to consequences which the defendant did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim. W. Prosser and W. Keeton, The Law of Torts, § 9 (5th ed. 1984); Restatement (Second) of Torts, American Law Institute § 16, n. 22 (1965); F. Harper and F. James, The Law of Torts, § 3.3, n. 32, 33 (2nd ed. 1986).

Applying these precepts to the facts found and affirmed by the lower courts, we conclude that the plaintiff employee proved that a battery had been committed on him by another employee and that he is entitled to recover for all injuries resulting therefrom including his occipital nerve impairment. It is undisputed that when Mr. Betts shocked the employee, Mr. Caudle, with the condenser, he intended the contact to be offensive and at least slightly painful or harmful. The fact that he did so as a practical joke and did not intend to inflict actual damage does not render him immune from liability. Further, as between the innocent employee victim and the wrongdoer, it is better for unexpected losses to fall upon the intentional wrongdoer. Mr. Caudle is entitled to recover for all consequences of the battery, even those that Mr. Betts did not intend and could not reasonably have foreseen.

Because the trial and appeals courts mistakenly concluded that an intentional tort had not been committed, they did not consider or award damages to the plaintiff. Consequently, the judgments below are reversed and the case is remanded to the court of appeal for further proceedings consistent with this opinion. Because we have received a copy of an order of the bankruptcy court indicating that one of the parties herein has filed a petition in bankruptcy, however, the court of appeal is instructed that upon receiving this case on remand it shall comply with 11 U.S.C. § 362(a) by staying any proceedings provided for therein.

REVERSED AND REMANDED TO THE COURT OF APPEAL WITH INSTRUCTIONS.

GREENHILL, Justice.

This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there was evidence that an actionable battery was committed, and, if so, whether the two corporate- defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.

The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro, could not be *629served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.

The jury found that Flynn “forceably dispossessed plaintiff of his dinner plate” and “shouted in a loud and offensive manner” that Fisher could not be served there, thus subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher $400 actual damages for his humiliation and indignity and $500 exemplary damages for Flynn’s malicious conduct.

The Court of Civil Appeals held that there was no assault because there was no physical contact and no evidence of fear or apprehension of physical contact. However, it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper & James, The Law of Torts 216 (1956) ; Restatement of Torts 2d, §§ 18 and 19. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:

“The interest in freedom from intentional and unpermitted contacts witlrthe plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.”

Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body. “To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking dr snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.” Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941).

Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed “an assault or trespass upon the person” by snatching a book from the plaintiff’s hand. The jury findings in that case were that the defendant “dispossessed plaintiff of the book” and caused her to suffer “humiliation and indignity.”

The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d § 18 (Comment p. 31) as follows:

“Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one’s body as to be universally regarded as part of the person.”

*630We hold,. therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.

In Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81 (1953), this Court refused to adopt the “new tort” of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery. This cause of action has long been advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d § 46(1). However, it is not necessary to adopt such a cause of action in order to sustain the verdict of the jury in this case. The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts “which are recognized as torts and actionable independently and separately from mental suffering or other injury.” 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d § 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.

We now turn to the question of the liability of the corporations for exemplary damages. In this regard, the jury found that Flynn was acting within the course and scope of his employment on the occasion in question; that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff on the occasion in question. There is no attack upon these jury findings. The jury further found that the defendant Carrousel did not authorize or approve the conduct of Flynn. It is argued that there is no evidence to support this finding. The jury verdict concluded with a finding that $500 would “reasonably compensate plaintiff for the malicious act and wanton disregard of plaintiff’s feelings and rights. * * * ”

The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if:

(a) the principal authorized the doing and the manner of the act, or

(b) the agent was unfit and the principal was reckless in employing him, or

(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or

(d) the employer or a manager of the employer ratified or approved the act.

The above test is set out in the Restatement of Torts § 909 and was adopted in King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950). At the trial of this case, the following stipulation was made in open, court:

“It is further stipulated and agreed to by all parties that as an employee of the Carrousel Motor Hotel the said Robert W. Flynn was manager of the Brass Ring Club.”

We think this stipulation brings the case squarely within part (c) of the rule an*631nounced in the King case as to Flynn’s managerial capacity. It is undisputed that Flynn was acting in the scope of employment at the time of the incident; he was attempting to enforce the Club rules by depriving Fisher of service.

The rule of the Restatement of Torts adopted in the King case set out above has four separate and disjunctive categories as a basis of liability. They are separated by the word “or.” As applicable here, there is liability if (a) the act is authorized, or (d) the act is ratified or approved, or (c) the agent was employed in a managerial capacity and was acting in the scope of his employment. Since it was established that the agent was employed in a managerial capacity and was in the scope of his employment, the finding of the jury that the Carrousel did not authorize or approve Flynn’s conduct became immaterial.

The King case also cited and relied upon Ft. Worth Elevator Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). In that case, it was held not to be material that the employer did not authorize or ratify the particular conduct of the employee; and the right to exemplary damages was supported under what is section (b) of the Restatement or King rule: The agent was unfit, and the principal was reckless in employing [or retaining] him.

After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the answer to issue number eight [no authorization or approval of Flynn’s conduct on the occasion in question] and for judgment upon the verdict. The trial court erred in overruling that motion and in entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that judgment.

The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment, and for costs of this suit.

MEMORANDUM OPINION

BLACKWELL N. SHELLEY, Bankruptcy Judge.

This matter comes on upon the filing of a Complaint by Ralph Edward Davis, by counsel, to determine the dischargeability of a debt of the Defendant, Walter Calvin White, Jr., pursuant to 11 U.S.C. § 523(a)(6). After the filing of an answer by the Defendant a trial was held. Upon the foregoing the Court makes the following determination.

STATEMENT OF THE FACTS

On September 10, 1977 Walter Calvin White, Jr. (White) shot Ralph Edward Davis (Davis) in the stomach with a handgun. White was arrested for the shooting and on November 29, 1978 the Circuit Court of the City of Richmond found him guilty of maiming Davis and sentenced him to serve five years in the state penitentiary. On February 26, 1980 Davis obtained a default judgment against White in the amount of *248$50,000.00 in the Circuit Court for the City of Richmond on the ground that White willfully and maliciously wounded Davis. White subsequently filed his petition in bankruptcy and Davis now asks this Court to declare White’s debt on account of that judgment nondischargeable in bankruptcy.

On the day of the shooting Davis and his brother, Marvin W. Davis, were washing cars in front of their mother’s house on Fairmont Avenue in Richmond, Virginia. At the same time White, a neighbor who lives less than one block away on the same street, was having a conversation with William Tipton (Tipton). In that conversation White and Tipton continued an argument which had begun approximately one week earlier. White had obtained a gun in anticipation of seeing Tipton. White was carrying the pistol in a container on his motorcycle and pulled it out of the container during the course of that argument.

When White pulled the gun Tipton mounted his motorcycle and sped away. White shot at Tipton as Tipton passed within twenty-five feet of Davis. He missed Tipton and the bullet hit Davis in the stomach. White fled the scene.

White testified at the trial that he obtained the gun with the intent of scaring Tipton. He said that he drew the gun after Tipton insulted his mother but that he did not intentionally fire the gun. He claimed the gun went off when he tripped over a roclc in the street.

Davis and White did not know each other before the shooting incident. White said he pulled the gun intending to scare Tipton and that it accidently fired. This Court believes that White’s testimony that the gun accidently fired when he tripped over a rock is unworthy of belief. White testified that he obtained the gun earlier that week with another meeting with Tipton in mind. Although Davis was located almost a full block from White, the bullet hit him as Tipton passed within twenty-five feet of him. White clearly intended to shoot Tip-ton; however, he missed and the bullet hit Davis instead.

CONCLUSIONS OF LAW

A debt incurred from an action based upon a willful and malicious injury by the debtor to another person may be nondischargeable in bankruptcy.1 11 U.S.C. § 523(a)(6). The word “willful” means deliberate or intentional.2

It is clear under the Bankruptcy Reform Act of 1978 that “reckless disregard” is no longer sufficient to make a debt nondischargeable pursuant to this section. The debtor’s action in creating this injury must be deliberate or intentional. In re Bryson, 3 B.R. 593, 596 (Bkrtcy.N.D.Ill.1980). Although White did intend to shoot Tipton it is clear he did not intend to shoot Davis. The language of the Act does not necessarily restrict the penalty of nondischargeability being imposed solely in cases in which the debtor injured the person he intended to injure. Collier provides that “[a]n injury to an entity or property may be a malicious injury within this provision if it was wrongful and without just cause or excessive, even in the absence of personal hatred, spite or ill will. The word ‘willful’ means ‘deliberate or intentional’, a deliberate and intentional act which necessarily leads to injury. Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious inju*249ry.” Collier on Bankruptcy, ¶ 523.16[1] (15th ed. 1981) (footnotes omitted).

White committed the wrongful act when he shot at Tipton. The act was intentional and it produced an injury although not to the person White intended to injure. White’s actions cannot be excused solely because he missed his intended victim and instead hit someone else. The injury is not required to be directed against the victim, but includes any entity other than the intended victim.

Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended .victim. W. Prosser, The Law of Torts, 33 (4th ed. 1971). If one intentionally commits an assault or battery at another and by mistake strikes a third person, he is guilty of an assault and battery of the third person if “[defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended.” Morrow v. Flores, 225 S.W.2d 621, 624, Tex.Civ.App. (1949), rehearing denied 1950.

Virginia courts have adopted the doctrine of transferred intent reasoning that “. . . every person is liable for the direct, natural and probable consequence of his acts, and that every one doing an unlawful act is responsible for all of the consequential results of that act.” Bannister v. Mitchell, 127 Va. 578, 104 S.E. 800, 801 (1920). There need be no actual intent to injure the particular person who is injured. Id.

Likewise this shooting was done maliciously even though the assailant intended to wound another person. Smith v. Moran, 43 Ill.App.2d 373, 193 N.E.2d 466, 469 (1963). “. . . [I]t is common knowledge that when one person has a malicious intent against another and in carrying it out injures a third person, he is guilty of malice against the person he has injured; he has general malice . . .. ” Id., citing, Coleridge, C. J., R. V. Latimer, 55 L.J.M.C. 136; 17 G.B.D. 359, 54 L.T. 768.

The evidence here clearly shows that the shooting was a wrongful act intentionally done and that Davis’s injuries resulted from that act. White deliberately, intentionally and maliciously fired the gun and injured Davis and the debt resulting from that act is nondischargeable in bankruptcy.

White argues that the statute of limitations can be raised as a defense in this proceeding. He argues that Davis’s tort action was not brought within the two-year statute of limitations period which is applicable under § 8.01 — 243 of the Code of Virginia. Davis obtained his judgment by default and White never argued the statute of limitations issue.

It is the duty of this Court to determine the dischargeability of a debt evidenced by the judgment of a non-bankruptcy court. In re McKenna, 4 B.R. 160, 162 (Bkrtcy.N.D.Ill.1980). The doctrine of res judicata provides that a judgment, even though obtained by default, is conclusive as to the cause of action upon which the suit was based. Id. The issue of liability in this case was settled by the Virginia court and this Court may deal only with the dischargeability of that debt. The running of the statute of limitations is irrelevant to this proceeding.

An appropriate order will issue.

JUSTICE LORENZ delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court granting defendant corporation’s motion for summary judgment. Plaintiff contends that the trial court erred in entering summary judgment against her because a genuine issue of material fact existed concerning her charge that she was falsely detained and imprisoned. For the reasons which follow, we affirm the trial court’s decision.

Count I of plaintiff’s unverified two-count complaint alleged that plaintiff was employed as a clerk in defendant’s donut shop in Woodridge, for approximately three years; that on or about April 8, 1981, defendant, through its agents and employees, Ralph Bell and James Cesario, accused her of selling donuts without registering sales and thereby pocketing defendant’s monies; and that she was falsely detained and imprisoned against her will in a room located on defendant’s premises, with force, and without probable and reasonable cause, by defendant’s employees. Count I of her complaint also alleged that as a result of defendant’s employees’ wilful and wanton false imprisonment, she was exposed to public disgrace; greatly injured in her good name and reputation; suffered, and still suffers, great mental anguish, humiliation and shock; wrongfully terminated from her employment; required to seek medical attention; all of which prevented her from attending to her usual affairs.

Defendant filed its answer on August 19, 1981, denying the material allegations of count I of plaintiff’s complaint. Further, on February 9, 1983, defendant amended its answer by filling an affirmative defense that alleged, inter alia, it was a merchant; that any questioning of plaintiff by its employees was performed only after said employees had reasonable grounds to believe that plaintiff had commit*48ted retail theft while working for defendant; that any alleged detention for questioning was limited solely to an inquiry as to whether plaintiff had failed to ring certain retail sales; and that such inquiry took place in a reasonable manner and for a reasonable length of time.

Defendant’s motion for summary judgment on count I of the complaint set forth the argument that plaintiff’s complaint, sounding in false imprisonment and alleging that she was held against her will by her employers in a certain room of a Winchell’s Donut House, was contradicted by her testimony in a discovery deposition. Defendant argued that plaintiff testified in this deposition that she had voluntarily complied with Messrs. Bell and Cesario’s request to speak privately with her regarding the matter of shortages in her register on April 9, 1981. Defendant further argued that plaintiff testified that when she no longer wished to continue her conversation with her employers, she got up and went home, electing never to return to her job.

The motion included portions of plaintiff’s deposition which disclosed the following. James Cesario telephoned plaintiff at her home at 4:30 p.m. on April 9, 1981, and asked her to come down to the donut shop; he did not explain his reasons for wanting her to do so. As a result of this call, plaintiff walked to the store from her home, arriving 10 minutes later. Upon her arrival at the store, Cesario asked her to accompany him into the baking room, which was located at the rear of the store; Ralph Bell was also present in the room. After Cesario asked plaintiff to sit down, she indicated that they (Cesario and Bell) closed the door and locked it by putting a “little latch on.” She stated that the two men told her that they had proof that spotters going from store to store had purchased two dozen donuts from her, but that her register had not shown the sale. After refusing her request to view the “proof,” plaintiff stated that she was “too upset” to respond to their questioning regarding the length of time that her alleged “shorting” of the cash drawer had been going on.

She further stated that defendant’s employees never told her that she had to answer their questions or face the loss of her job; never directly threatened to fire her; and made no threats of any kind to her during the interrogation. She further testified that she at no time during the interrogation feared for her safety; that she at no time refused to answer any question put to her; that there was never a point in the interrogation that she said, “I want to leave” and was prevented from doing so; and that she got up, left the room and went home when she first decided to do so.

Plaintiff’s written response to defendant’s motion for summary *49judgment did not contradict the statements that she had made in her discovery deposition. In her affidavit filed in support of her response to defendant’s motion for summary judgment, plaintiff averred that (1) she left the baking room after she began to shake, and when she felt that she was becoming ill; and (2) she was terminated from her employment by defendant.

The trial court entered summary judgment for defendant. Plaintiff appeals from that order. Count II of her complaint alleging defamation of character remains pending in the trial court.

Opinion

It is well established that summary judgment determines whether any genuine issue of material fact exists and summarily disposes of cases where no such fact exists in order to avoid congestion of trial calendars and the expense of unnecessary trials. (Loveland v. City of Lewistown (1980), 84 Ill. App. 3d 190, 192, 405 N.E.2d 453.) The motion should be granted where the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) In addition, discovery depositions may be used in the context of summary judgment proceedings “for any purpose for which an affidavit may be used.” See 87 Ill. 2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill. 2d 585, 588, 328 N.E.2d 559.

In ruling on a motion for summary judgment, the trial court must construe pleadings, depositions and affidavits included therein most strictly against the movant and most liberally in favor of the nonmovant. (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 37, 356 N.E.2d 639.) The defendant may at any time move for summary judgment in his favor for all or any part of relief sought against him. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App. 3d 333, 338.) However, because summary judgment is a drastic method of disposing of litigation, it should be granted only when the right of the movant is clear and free from doubt. Hillblom v. Ivancsits (1979), 76 Ill. App. 3d 306, 310, 395 N.E.2d 119.

Plaintiff asserts that the trial court erred in granting defendant’s motion for summary judgment as there exists a genuine issue of material fact. She posits that she felt compelled to remain in the baking room so that she could protect her reputation by protesting her innocence to the two men, and that she left the room once she began to shake and feel ill. Additionally, she attributes her “serious emotional upset” to her feelings of intimidation that she contends were caused *50by: James Cesario’s sitting directly next to her during questioning, yellow pad and pencil in hand; Ralph Bell’s repeated statement that his briefcase contained proof of her guilt; and his raised voice.

The common law tort of false imprisonment is defined as an unlawful restraint of an individual’s personal liberty or freedom of locomotion. (Johnson v. Jackson (1963), 43 Ill. App. 2d 251, 258, 193 N.E.2d 485; Shelton v. Barry (1946), 328 Ill. App. 497, 506, 66 N.E.2d 697.) Imprisonment has been defined as “any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go.” (McKendree v. Christy (1961), 29 Ill. App. 2d 195, 199, 172 N.E. 2d 380.) In order for a false imprisonment to be present, there must be actual or legal intent to restrain. Campbell v. Kaczmarek (1976), 39 Ill. App. 3d 465, 469, 350 N.E.2d 97.

Unlawful restraint may be effected by words alone, by acts alone or both (Hassenauer v. F. W. Woolworth Co. (1942), 314 Ill. App. 569, 41 N.E.2d 979 (abstract of opinion)); actual force is unnecessary to an action in false imprisonment. (Winans v. Congress Hotel Co. (1922), 227 Ill. App. 276, 282.) The Restatement of Torts specifies ways in which an actor may bring about the confinement required as an element of false imprisonment, including (1) actual or apparent physical barriers; (2) overpowering physical force, or by submission to physical force; (3) threats of physical force; (4) other duress; and (5) asserted legal authority. Restatement (Second) of Torts secs. 38 through 41 (1965).

It is essential, however, that the confinement be against the plaintiff’s will, and if a person voluntarily consents to the confinement there can be no false imprisonment. (Fort v. Smith (1980), 85 Ill. App. 3d 479, 481, 407 N.E.2d 117.) “Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft is not enough; nor, as in the case of assault, are threats for the future. Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress.” Prosser, Torts sec. 11, at 45 (4th ed. 1971).

Plaintiff principally relies on the court’s decision in Marcus v. Liebman (1978), 59 Ill. App. 3d 337, 375 N.E.2d 486, for support of her position that summary judgment should not have been granted in the instant case. In Marcus v. Liebman, the court extensively examined the concept that threats of a future action are not enough to constitute confinement. (59 Ill. App. 3d 337, 341.) There, the defendant psychiatrist threatened to have plaintiff committed to the Elgin State Hospital, and the Marcus court found that this was a present threat, *51constituting false imprisonment, as opposed to a threat of future action. The court in Marcus concluded that the lower court had incorrectly directed a verdict for the defendant, and reversed and remanded the case for trial on the question of imprisonment. The court noted that plaintiff was already voluntarily committed to the psychiatric wing of a private hospital when the defendant made the threat to commit her to a state mental hospital and reasoned, “[A]t the time the alleged threat was made plaintiff was already confined. It was certainly reasonable for the plaintiff to believe that before her release [from the private hospital] commitment procedures could have been concluded.” 59 Ill. App. 3d 337, 341.

Our analysis of the Marcus decision, as well as the other cases cited by plaintiff, does not support plaintiff’s position. All of these cases are easily distinguishable from the present case, as in each, either physical restraint or present threats of such were present.

In the case at bar, we are confronted with plaintiff’s testimony, given under oath, that she voluntarily accompanied James Cesario to the baking room; that she stayed in the room in order to protect her reputation; that she was never threatened with the loss of her job; that she was never in fear of her safety; and that at no time was she prevented from exiting the baking room. Her affidavit, in which she averred that she left the baking room after she began to shake and when she felt that she was becoming ill, does not place into issue material facts which she had previously removed from contention. (Foun-taine v. Hadlock (1971), 132 Ill. App. 2d 343, 347, 270 N.E.2d 222.) In her discovery deposition, given under oath, she stated that she “got up and left” when Ralph Bell asked her how long the cash register “shorting” had been going on.

In the tort of false imprisonment, it is not enough for the plaintiff to have felt “compelled” to remain in the baking room in order to protect her reputation (see Prosser, Torts sec. 11 (4th ed. 1971)), for the evidence must establish a restraint against the plaintiff’s will, as where she yields to force, to the threat of force or the assertion of authority. (See Restatement (Second) of Torts secs. 38 through 41 (1965).) In the present case, our search of the record reveals no evidence that plaintiff yielded to constraint of a threat, express or implied, or to physical force of any kind. Also, absent evidence that plaintiff accompanied Cesario against her will, we cannot say that she was imprisoned or unlawfully detained by defendant’s employees. Finally, we find no merit to plaintiff’s argument that defendant’s affirmative defense constituted an admission of an unlawful restraint.

*52For the reasons stated above, we conclude that the trial court properly granted defendant’s motion for summary judgment, as there exists no question of material fact in the present case.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.

BEAM, Circuit Judge.

Carl Shen is a former employee of Leo A. Daly Company’s (Daly) Republic of China (Taiwan) office. Daly refused to pay taxes assessed by the Taiwanese government. As a result, Taiwan restricted Shen’s travel, forbidding him from leaving the country. Shen then sued Daly on multiple theories of liability for damages and injunctive relief. Shen prevailed in part in the district court. Both he and Daly appeal the judgment. We affirm in part and reverse in part.

I. BACKGROUND

Shen is a United States citizen who retains dual Taiwanese citizenship. In 1989, Shen moved to Taiwan to become managing director of Daly’s operation there.

To conduct business in Taiwan, Daly was required to designate a “responsible person,” or legal representative in the country, and Shen was so designated. In November 1992, Daly decided to withdraw from Taiwan because of business setbacks. As a result, Shen was terminated but chose to remain in Taiwan. Daly, however, failed to remove Shen as its responsible person.

In December 1993, Shen received a notice from the Taiwan Tax Authority that it wanted to audit Daly’s 1992 Taiwan tax returns. Shen, in turn, notified Daly’s accounting firm in Taiwan and informed them he was concerned he could be held responsible for any deficiency because his “chop,” the Taiwanese equivalent of a signature, was affixed to the returns. Daly *476responded that it was “inconceivable” any tax could be owed because Daly had suffered large losses in Taiwan. In January 1994, Shen asked Daly to indemnify him should the Taiwan Tax Authority impose the tax liability on him directly.

Following this request and until mid-October 1995, Shen, through a series of letters to Daly personnel and to Mr. Leo A. Daly III himself, implored Daly to resolve the tax dispute and remove him as the responsible person. In May 1994, the Taiwan Tax Authority assessed a tax liability of approximately $80,000 against Daly for 1991 and 1992. Daly did not appeal the assessment, and it became final in June 1995. In October 1995, the Taiwan Ministry of Finance and the Bureau of Entry and Exit informed Shen he was forbidden from leaving the country until resolution of the Daly tax issue.

Daly’s attempt to extricate Shen through diplomatic channels failed. Shen then brought suit for a declaratory judgment in Taiwan to remove himself as Daly’s responsible person. Although the court recognized Shen was no longer an employee of Daly, it denied relief because Daly had not replaced him as the responsible person. The Ministry of Finance also denied an appeal by Shen.

In 1997, Shen sued Daly in the United States District Court for the District of, Nebraska. He requested a preliminary injunction to force Daly to pay the taxes. The district court entered such an injunction on December 31, 1997. We assume Daly then paid the taxes because Taiwan lifted the travel restriction. The district court held a bench trial in February 1999 on the issue of a permanent injunction and damages. The district court found a violation of the implied covenant of good faith and fair dealing and granted a permanent injunction. Shen was also awarded attorney’s fees and $4760 in damages on his contractual claims. Shen, however, did not prevail on his claims for false imprisonment or intentional infliction of emotional distress. Both sides now appeal and we affirm in part and reverse in part.

II. DISCUSSION

This suit was brought under the court’s diversity jurisdiction and therefore Nebraska law controls on all the issues presented in this appeal.

A. Res Judicata

Daly contends Shen’s suit for a declaratory judgment in Taiwan should have preclusive effect in this suit and thus should bar all of Shen’s claims for relief. To give the judgment of a foreign country preclusive effect, it must be recognized as a legitimate judgment. See Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Nebraska, however, has very little case law on this issue. After reviewing the relevant case law from other jurisdictions, we are persuaded Nebraska would follow the principles laid out by the Supreme Court in Hilton.

A judgment should be enforced and not retried if the foreign forum: (1) provided a full and fair trial of the issues in a court of competent jurisdiction; (2) ensured the impartial administration of justice; and (3) ensured the trial was without prejudice or fraud. See id. The foreign court must also have proper jurisdiction over the parties and the judgment must not violate public policy. See id.; Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436, 440 (1978). The burden of proof in establishing that the foreign judgment should be recognized and given preclusive effect is on the party asserting it should be recognized. See Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 286 (S.D.N.Y.1999).

Thus, Daly, the party arguing that the Taiwan judgment should be given preclusive effect, must establish each of these factors. Daly has merely asserted the Taiwanese judgment should be given effect, it has not provided the district court or this court with any authority that guides to*477ward the recognition of foreign judgments. Additionally, Daly did not produce any evidence to support its res judicata defense. Accordingly, it did not provide enough information for us to determine if the Taiwan tribunals are impartial or if Taiwan procedures are compatible with due process. Therefore, we find Daly did not meet its burden of proof, and the Taiwanese court’s judgment will not be accorded preclusive effect.

B. Injunctive Relief

Daly next asserts the district court erred in granting preliminary and permanent injunctive relief. We review the district court’s decision to grant injunctive relief for an abuse of discretion and we will affirm unless the district court “clearly erred in its characterization of the facts, made a mistake of law, or abused its discretion in considering the equities.” Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington N.R.R. Co., 802 F.2d 1016, 1020 (8th Cir.1986); see also United States v. Grand Lab., Inc., 174 F.3d 960, 965 (8th Cir.1999).

The district court held that Daly breached the implied covenant of good faith and fair dealing based on the agency relationship between Daly and Shen. We agree. Under Nebraska law, whether a person is an agent is a question of fact. See McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433, 439 (1993). The existence of an agency relationship does not depend on the terminology the parties use to characterize their relationship, but depends on the facts underlying the relationship. See Franksen v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794, 801 (1994); McCurry, 496 N.W.2d at 439. An agency relationship can be implied from words, conduct or circumstances that evidence an intent to create one. See McCurry, 496 N.W.2d at 439. For example, under agency principles, an agent can be given apparent or ostensible authority to act if the “alleged principal affirmatively, intentionally, or by lack of ordinary care causes third persons to act upon the apparent authority.” See Franksen, 515 N.W.2d at 801. That is what happened in this case.

After Daly terminated Shen in December 1992, Daly did not remove Shen as its responsible person. When Shen entreated Daly to remove him as its responsible person in January 1994, Daly still did not act. In June 1994, Daly tried to have one of the employees of its accounting firm in Taiwan replace Shen and informed Shen that the employee had become Daly’s new responsible person. The employee, however, decided not to take the appointment, and Daly failed to inform Shen of this fact for seven months. By the time Shen learned there was no replacement for him, the threat of a travel restriction was looming, and Daly was unable to find anyone willing to take the appointment. The result of Daly’s initial inaction and subsequent inability to replace Shen as responsible person was that Shen remained Daly’s agent regarding actions taken by Taiwan. Therefore, we find no error in the district court’s factual finding of an agency relationship.

A principal and an agent are in a fiduciary relationship. See Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50, 54 (1997). Because of the fiduciary relationship, the principal owes the agent a duty of good faith and fair dealing in the incidents of their relationship. See Lawrence Warehouse Co. v. Twohig, 224 F.2d 493, 497 (8th Cir.1955). Moreover, “ ‘[cjorrelative with the duties of the agent to serve loyally and obediently are the principal’s duties of compensation, indemnity, and protection.’ ” See Western Smelting & Ref. Co. v. First Nat’l Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116, 121 (1948) (quoting Restatement of Agency Intro, note, vol. 2, p. 999). Daly breached its duty as a fiduciary in the following ways: (1) Daly did not pay the tax when it was assessed; (2) it chose not to appeal the assessment through proper channels; and (3) Daly did not find *478a replacement for Shen as responsible person.

We recognize Daly believes the taxes were unfairly assessed and amounted to little more than extortion. However, its dispute with Taiwan over the “ ‘principle of the thing’ took place over the body of its innocent former employee and agent” and, thus, the district court did not abuse its discretion in granting the injunction based on Daly’s breach of fiduciary duty. Shen v. Leo A. Daly Co., No. 8:97CV441, Slip Op. at 14 (D.Neb. May 28, 1999).

C. False Imprisonment

Shen contends the district court erred when it granted Daly’s motion for judgment as a matter of law on the false imprisonment claim. We review the decision to grant judgment as a matter of law de novo, viewing the evidence in the light most favorable to Shen. See DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 467 (8th Cir.2000). False imprisonment is “the unlawful restraint against his will of an individual’s personal liberty.” See Herbrick v. Samardick & Co., 169 Neb. 833, 101 N.W.2d 488, 491 (1960). Shen’s liberty was restrained in this case — he was not allowed to leave Taiwan. And, as Shen correctly points out, the term false imprisonment is broader than just confinement within a jail or prison. Shen’s confinement, however, was to a whole country. He was free to move about Taiwan, and was not restrained in any way in his daily activities. Although it is difficult to define exactly how close the level of restraint must be, in this case the country of Taiwan is clearly too great an area within, which to be falsely imprisoned. Therefore, the district court correctly granted judgment as a matter of law.

D. Intentional Infliction of Emotional Distress

Shen also asserts the district court improperly dismissed his claim for intentional infliction of emotional distress. We review legal conclusions de novo, and factual findings for clear error. See Simmons v. Cook, 154 F.3d 805, 807 (8th Cir.1998). To establish a claim for intentional infliction of emotional distress, Shen must prove:

(1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607, 611 (2000).

The harms Shen suffered because of Daly’s refusal to pay the tax included “missed family occasions, estrangement from his wife, lost business opportunities, shame, depression, insomnia, anxiety, and a variety of health problems for which, he testified, he sought medical attention.” Shen, Slip-op. at 15. Although Shen undoubtedly did suffer stress and anxiety in this situation, his suffering does not rise to the level required by Nebraska law. Additionally, Daly’s conduct, though unquestionably unfair, did not exceed “all possible bounds of decency.” Therefore, we find no error in the district court’s dismissal of this claim.

E.Set-off

Daly contends it is entitled to set-off $6700 that Shen owes it against the $4670 Shen recovered on contract claims. The district court denied the set-off because it had not been pled and it was not included in the pre-trial order. We review the district court’s decision for an abuse of discretion. See Corsica Livestock Sales, Inc. v. Sumitomo Bank, 726 F.2d 374, 377 (8th Cir.1983).

The pleading rules in the federal courts are very liberal and Federal Rule of Civil Procedure 15 contemplates *479that courts should allow pleadings to be amended if it is necessary to further justice and will not prejudice the parties. See id. Furthermore, Rule 15(b) provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Consent may be implied if evidence to support the claim was introduced at trial without objection. See St. Joe Minerals Corp. v. Occupational Safety and Health Review Comm’n, 647 F.2d 840, 844 (8th Cir.1981).

Although Shen did not expressly consent to try the set-off issue, the issue was tried by implied consent in this case. On cross-examination, Shen, without objection, testified he received the refund from withholding taxes from the Taiwanese government. He testified that it was Daly’s money and amounted to $6700. Additionally, Shen acknowledged he owes Daly the money. The fact that the money is owed is not disputed. Therefore, we find the court abused its discretion and Daly is entitled to the set-off.

F. Attorney’s Fees

Daly asserts the district court erred in awarding Shen attorney’s fees for the action in Taiwan and for this action. Under Nebraska law, attorney’s fees are only proper if they are permitted by statute or by uniform practice. See Quinn v. Godfather’s Inv., Inc., 217 Neb. 441, 348 N.W.2d 893, 894 (1984). Furthermore, “[a]s a general rule of practice in [Nebraska], attorneys’ fees are allowed to the successful party in litigation only where such allowance is provided by statute.” Id. at 895. There is no Nebraska statute authorizing attorney’s fees for a breach of fiduciary duty. Therefore, the district erred in awarding attorney’s fees for this action.

However, the bar on attorney’s fees only applies in the very case being litigated. See Zimmerman v. FirsTier Bank, N.A., 255 Neb. 410, 585 N.W.2d 445, 454 (1998). It would not apply to the award of attorney’s fees for the action in Taiwan because that award, in essence, is compensatory. Nebraska courts have held that attorney’s fees are recoverable as compensatory damages when a person, damaged by a tort, was required to bring a suit against a third person to protect his interests. See Tetherow v. Wolfe, 223 Neb. 631, 392 N.W.2d 374, 379 (1986). A person who commits a breach of fiduciary duty is guilty of tortious conduct. See Restatement (Second) of Torts § 874 cmt. b (1979). Daly’s breach of the covenant of good faith and fair dealing is a breach of fiduciary duty. And, although Shen sued Daly in the action in Taiwan, he was required to bring his suit to protect his interest and have the travel restriction lifted. Therefore, the attorney’s fees awarded for the suit in Taiwan were proper as an element of damages for breach of fiduciary duty.

G. Damages

Shen contends the district court should have awarded him compensatory damages for the breach of the covenant of good faith and fair dealing. We review the district court’s damage award for an abuse of discretion. See Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 476 (8th Cir.1993). Under Nebraska law, “[t]he amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved.” Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445, 449 (1998). We find the record supports the district court’s award of attorney’s fees for the action in Taiwan as damages for the breach of the covenant of good faith. Thus, we find no abuse of discretion by the district court.

III. CONCLUSION

Accordingly, we affirm the judgment of the district court with respect to injunctive *480relief and damages. We reverse the judgment of the district court on the issue of set-off and reverse in part on the issue of attorney’s fees. This action is remanded to the District Court for an entry of judgment in accordance with this opinion.

SHERAN, Chief Justice.

This action by plaintiff Susan Jungclaus Peterson for false imprisonment and intentional infliction of emotional distress arises from an effort by her parents, in conjunction with other individuals named as defendants, to prompt her disaffiliation from an organization known as The Way Ministry.

At trial, the Hennepin County District Court directed a verdict in favor of defendant Paul Sorlien, plaintiff’s former minister, finding the evidence proffered against *126him insufficient as a matter of law. The jury returned a verdict exonerating Mr. and Mrs. Jungclaus and the other remaining defendants of the charge of false imprisonment; however, the jury found defendants Veronica Morgel and Kathy Mills liable for intentional infliction of emotional distress, assessing against each of them $1 compensatory damages and $4,000 and $6,000 respectively as punitive damages.

Plaintiff asserts that the trial court erred by 1) failing to grant a judgment notwithstanding the verdict on the claim of false imprisonment; 2) permitting the admission of evidence concerning her involvement in The Way and its activities; 3) instructing the jury that in assessing plaintiff’s credibility it could consider whether others than plaintiff were participating in the expense of the litigation; 4) directing a verdict in favor of Paul Sorlien; and 5) denying her motion to amend the complaint to substitute the proper names of defendants previously identified as John Doe, James Roe, Jane Doe and Mary Roe and to add a new cause of action.

We find that if the trial court erred in its jury instruction which outlined the factors that could be considered in assessing plaintiff’s credibility and by failing to permit the substitution of proper names for defendants otherwise identified in the complaint, these errors were not of a fundamental magnitude. In all other respects, we affirm the determination of the district court.

Viewing the evidence in the light most favorable to the prevailing defendants, this case marks the emergence of a new cultural phenomenon: youth-oriented religious or psuedo-religious groups which utilize the techniques of what has been termed “coercive persuasion” or “mind control” to cultivate an uncritical and devoted following. Commentators have used the term “coercive persuasion,” originally coined to identify the experience of American prisoners of war during the Korean conflict to describe the cult-induction process. The word “cult” is not used pejoratively but in its dictionary sense to describe an unorthodox system of belief characterized by “[g]reat or excessive devotion or dedication to some person, idea, or thing.” Webster’s New International Dictionary of the English Language Unabridged 552 (1976). Coercive persuasion is fostered through the creation of a controlled environment that heightens the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The aftermath of indoctrination is a severe impairment of autonomy and the ability to think independently, which induces a subject’s unyielding compliance and the rupture of past connections, affiliations and associations. See generally Delgado, Religious Totaiism: Gentle and Ungentle Persuasion under the First Amendment, 51 S.Cal.L.Rev. 1 (1977). One psychologist characterized the process of cult indoctrination as “psychological kidnapping.” Id. at 23.

At the time of the events in question, Susan Jungclaus Peterson was 21 years old. For most of her life, she lived with her family on a farm near Bird Island, Minnesota. In 1973, she graduated with honors from high school, ranking second in her class. She matriculated that fall at Moorhead State College. A dean’s list student during her first year, her academic performance declined and her interests narrowed after she joined the local chapter of a group organized internationally and identified locally as The Way of Minnesota, Inc.

The operation of The Way is predicated on the fund-raising activities of its members. The Way’s fund-raising strategy centers upon the sale of pre-recorded learning programs. Members are instructed to elicit the interest of a group of ten or twelve people and then play for them, at a charge of $85 per participant, a taped introductory course produced by The Way International. Advanced tape courses are then offered to the participants at additional cost, and training sessions are conducted to more fully acquaint recruits with the orientation of the group and the obligations of membership. Recruits must contribute a minimum of 10 percent of their earnings to the organ*127ization; to meet the tithe, student members are expected to obtain part-time employment. Members are also required to purchase books and other materials published by the ministry, and are encouraged to make larger financial contributions and to engage in more sustained efforts at solicitation.

By the end of her freshman year, Susan was devoting many hours to The Way, listening to instructional tapes, soliciting new members and assisting in training sessions. As her sophomore year began, Susan committed herself significantly, selling the car her father had given her and working part-time as a waitress to finance her contributions to The Way. Susan spent the following summer in South Dakota, living in conditions described as appalling and overcrowded, while recruiting, raising money and conducting training sessions for The Way.

As her junior year in college drew to a close, the Jungclauses grew increasingly alarmed by the personality changes they witnessed in their daughter; overly tired, unusually pale, distraught and irritable, she exhibited an increasing alienation from family, diminished interest in education and decline in academic performance. The Jungclauses, versed in the literature of youth cults and based on conversations with former members of The Way, concluded that through a calculated process of manipulation and exploitation Susan had been reduced to a condition of psychological bondage.

On May 24, 1976, defendant Norman Jungclaus, father of plaintiff, arrived at Moorhead to pick up Susan following the end of the third college quarter. Instead of returning to their family home, defendant drove with Susan to Minneapolis to the home of Veronica Morgel. Entering the home of Mrs. Morgel, Susan was greeted by Kathy Mills and several young people who wished to discuss Susan’s involvement in the ministry. Each of those present had been in some way touched by the cult phenomenon. Kathy Mills, the leader of the group, had treated a number of former cult members, including Veronica Morgel’s son. It was Kathy Mills a self-styled professional deprogrammer, to whom the Jungclauses turned, and intermittently for the next sixteen days, it was in the home of Veronica Morgel that Susan stayed.

The avowed purpose of deprogramming is to break the hold of the cult over the individual through reason and confrontation. Initially, Susan was unwilling to discuss her involvement; she lay curled in a fetal position, in the downstairs bedroom where she first stayed, plugging her ears and crying while her father pleaded with her to listen to what was being said. This behavior persisted for two days during which she intermittently engaged in conversation, at one point screaming hysterically and flailing at her father. But by Wednesday Susan’s demeanor had changed completely; she was friendly and vivacious and that night slept in an upstairs bedroom. Susan spent all day Thursday reading and conversing with her father and on Saturday night went roller-skating. On Sunday she played softball at a nearby park, afterwards enjoying a picnic lunch. The next week Susan spent in Columbus, Ohio, flying there with a former cult member who had shared with her the experiences of the previous week. While in Columbus, she spoke every day by telephone to her fiance who, playing tapes and songs from the ministry’s headquarters in Minneapolis, begged that she return to the fold. Susan expressed the desire to extricate her fiance from the dominion of the cult.

Susan returned to Minneapolis on June 9. Unable to arrange a controlled meeting so that Susan could see her fiance outside the presence of other members of the ministry, her parents asked that she sign an agreement releasing them from liability for their past weeks’ actions. Refusing to do so, Susan stepped outside the Morgel residence with the puppy she had purchased in Ohio, motioned to a passing police car and shortly thereafter was reunited with her fiance in the Minneapolis headquarters of The Way. Following her return to the ministry, she was directed to counsel and initiated the present action.

*1281. Plaintiff seeks a judgment notwithstanding the verdict on the issue of false imprisonment, alleging that defendants unlawfully interfered with her personal liberty by words or acts which induced a reasonable apprehension that force would be used against her if she did not otherwise comply. Durgin v. Cohen, 168 Minn. 77, 209 N.W. 532 (1926). The jury, instructed that an informed and reasoned consent is a defense to an allegation of false imprisonment and that a nonconsensual detention could be deemed consensual if one’s behavior so indicated, exonerated defendants with respect to the false imprisonment claim.

The period in question began on Monday, May 24, 1976, and ceased on Wednesday, June 9, 1976, a period of 16 days. The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of those days. During that time she took many excursions into the public sphere, playing softball and picnicking in a city park, roller-skating at a public rink, flying aboard public aircraft and shopping and swimming while relaxing in Ohio. Had Susan desired, manifold opportunities existed for her to alert the authorities of her allegedly unlawful detention; in Minneapolis, two police officers observed at close range the softball game in which she engaged; en route to Ohio, she passed through the security areas of the Twin Cities and Columbus airports in the presence of security guards and uniformed police; in Columbus she transacted business at a bank, went for walks in solitude and was interviewed by an F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did she complain of her treatment or suggest that defendants were holding her against her will. If one is aware of a reasonable means of escape that does not present a danger of bodily or material harm, a restriction is not total and complete and does not constitute unlawful imprisonment. Damages may not be assessed for any period of detention to which one freely consents. See Davis & Allcott Co. v. Boozer, 215 Ala. 116, 110 So. 28 (1926); Restatement (Second) of Torts § 36, Comment a (1965); 4 Minnesota Practice JIG II, 504 G-S (2d ed.1974).

In his summation to the jury, the trial judge instructed that to deem consent a defense to the charge of false imprisonment for the entire period or for any part therein, a preponderance of the evidence must demonstrate that such plaintiff voluntarily consented. The central issue for the jury, then, was whether Susan voluntarily participated in the activities of the first three days. The jury concluded that her behavior constituted a waiver.

We believe the determination to have been consistent with the evidence. See Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.1979); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); P. Harper & F. James, The Law of Torts § 3.10, at 235 (1956). Were the relationship other than that of parent and child, the consent would have less significance.

To determine whether the findings of the jury can be supported upon review, the behavior Susan manifested during the initial three days at issue must be considered in light of her actions in the remainder of the period. Because, it is argued, the cult conditioning process induces dramatic and non-consensual change giving rise to a new temporary identity on the part of the individuals whose consent is under examination, Susan’s volitional capacity prior to treatment may well have been impaired. Following her readjustment, the evidence suggests that Susan was a different person, “like her old self.” As such, the question of Susan’s consent becomes a function of time. We therefore deem Susan’s subsequent affirmation of defendants’ actions dispositive.

In Weiss v. Patrick, 453 F.Supp. 717 (D.R. I.), aff’d, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), the federal district court in Rhode Island confronted a situation similar to that which faces us. Plaintiff, a devotee of the Unification Church, brought an action for false imprisonment against individuals hired by her parents to prompt her disassociation from the church. Be*129cause plaintiff’s mother was dying of cancer, the church authorities permitted her to join her family for the Thanksgiving holiday. Met at the airport by her mother, she testified that she was restrained against her will, in the home of one of the defendants and subjected to vituperative attacks against the church until she seized an opportunity to flee. Despite the evidently traumatic experience sustained by plaintiff, the district court found that she failed to demonstrate a meaningful deprivation of personal liberty, reasoning that “any limitation upon personal mobility was not her primary concern.” Id. at 722. In so reasoning, the court underscored a parental right to advocate freely a point of view to one’s child, “be she minor or adult.” To assure freedom, the court observed, “the right of every person ‘to be left alone’ must be placed in the scales with the right of others to communicate.” Id. (quoting Rowan v. United States Post Office Department, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).

In light of our examination of the record and rules of construction providing that upon review the evidence must be viewed in a manner most favorable to the prevailing party, Kuehl v. National Tea Co., 310 Minn. 48, 245 N.W.2d 235 (1976), we find that a reasonable basis existed for the verdict exonerating defendants of the charge of false imprisonment. Although carried out under colorably religious auspices, the method of cult indoctrination, viewed in a light most favorable to the prevailing party, is predicated on a strategy of coercive persuasion that undermines the capacity for informed consent. While we acknowledge that other social institutions may utilize a degree of coercion in promoting their objectives, none do so to the same extent or intend the same consequences. Society, therefore, has a compelling interest favoring intervention. The facts in this case support the conclusion that plaintiff only regained her volitional capacity to consent after engaging in the first three days of the deprogramming process. As such, we hold that when parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or psuedo-religious cult, and the child at some juncture assents to the actions in question, limitations upon the child’s mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.1 But owing to the threat that deprogramming poses to public order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the First Amendment requires resort to the least restrictive alternative so as to not impinge upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1940).2

2. On appeal, plaintiff challenges the propriety of admissions by the trial court of evidence regarding her involvement in the activities of The Way. By charging defendants with intentional infliction of emotional distress and seeking punitive damages, plaintiff placed the state of mind of defendants at issue. For a court to award punitive damages, a plaintiff must prove that defendants acted willfully, wantonly and maliciously. Good faith is a proper defense to punitive damages, even though defendants might have been mistaken in their belief that a party was in jeopardy or that their actions were correct. Ben*130son Cooperative Creamery Association v. First District Association, 276 Minn. 520, 151 N.W.2d 422 (1967). Therefore, in determining whether defendants acted with the requisite degree of malice, the trial court considered defendants’ perceptions of The Way Ministry and their fears for Susan’s well-being relevant and admissible.

The ability of defendants to introduce testimony of their perception of the ministry’s effect upon plaintiff must be weighed against the First Amendment admonition respecting the free exercise of religion. Although religious belief is protected absolutely from governmental regulation, religiously motivated conduct is subject to a balancing test that weighs the interest of the religious group against the state’s interest in regulating or forbidding the activity. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A court may also afford the interest of the religious group less weight if it considers the belief giving rise to the conduct insincerely held, or if the practice is not central to the group’s system of belief. Id.

At trial, defendants did not act as inquisitors, seeking to admit testimony regarding plaintiff’s religious beliefs, but merely tried to show that their fears for Susan’s physical and emotional well-being were well-grounded. To assess defendants’ state of mind, the trial court admitted evidence purporting to illustrate defendants’ fear that The Way’s method of recruitment resembled a process of programmed manipulation devised to allay the suspicions and anesthetize the rational processes of its targets. Publication by The Way of a guide on “The ‘How’ of Door to Door Witnessing,” instructing recruiters to focus on “the hungry” and on “individuals whose resistance is temporarily lowered because of loneliness, worry over exams, or other adolescent crises,” suggests that a reasonable basis for defendants’ fears did indeed exist. The court therefore permitted references to Susan’s psychological and physical condition, the extent and manner of her participation in the program of the cult, the demands of membership, and her living conditions during the summer that she “witnessed” for the cult.

The admission of evidence for the purpose of showing good faith may have the unintended effect of prejudicing a jury by bringing out facts regarding religious belief. Aware of the potential impact of such testimony, the trial judge instructed the jury on no fewer than six occasions as to the purpose of the evidence and the context in which it could be considered and upheld objections to testimony bearing on religious belief. Since an award of punitive damages rests with the discretion of the jury, Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818 (1912), to have excluded all evidence bearing a potentially prejudicial impact would have eviscerated defendants’ right to defend against the charge of intentional infliction of emotional distress. We therefore find that in an action for intentional infliction of emotional distress, when the record discloses no testimony impinging upon religious belief, the introduction by defendants of relevant evidence concerning matters that plaintiff voluntarily placed in issue, such as her religious association and defendants’ state of mind, was admissible and did not violate the First Amendment admonition respecting freedom of religion.

3. Plaintiff next challenges a charge to the jury by the trial judge instructing that when assessing plaintiff’s credibility, the jury could properly take into account whether The Way was maintaining or financing the law suit. Plaintiff argues that the instruction, culminating after a lengthy trial involving several causes of action, extensive discovery proceedings, a plethora of motions and a number of hearings, constituted reversible error.

In the past, this court has observed that a trial court’s charge to the jury must be reviewed in its entirety, interpreting the instructions as a whole and refraining from considering isolated statements without reference to context. Thomas v. Mueller, 251 Minn. 470, 88 N.W.2d 842 (1958); Lund v. Minneapolis Street Ry., 250 Minn. 550, 86 *131N.W.2d 78 (1957). At trial, reference was made to whether plaintiff was the real party in interest or merely a conduit through which other parties were maintaining the action. As a matter of law, the court ruled that defense inadmissible, subsequently instructing that such facts could only be considered in determining plaintiff’s credibility and ascertaining appropriate damages. In otherwise instructing the jury, the trial court clearly and accurately described the torts of false imprisonment and intentional infliction of emotional distress and ruled as a matter of law that certain defenses asserted by defendants were inapplicable. The trial court also informed the jury that evidence implicating The Way could only be considered in the limited context of establishing whether defendants acted wantonly, willfully or maliciously; that inquiry, in turn, related only to the assessment of punitive damages and not to the ultimate questions of liability.

In general we believe it unwise to sanction a jury instruction providing that when a group supports a plaintiff or derives a benefit therefrom, evidence of such support can be introduced at trial relative to the question of damages. The ultimate effect of such a ruling might deter litigants from accepting the assistance of unpopular groups fearing that this evidence could affect the disposition of a case. In NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 405 (1963), the United States Supreme Court held such relationships to be modes of expression and association protected under the First Amendment. Button concerned the NAACP’s practice of advising individuals during informational meetings of its willingness to commence civil rights litigation on their behalf. Challenged under a statute forbidding solicitation of legal business by an organization that retains a lawyer in connection with an action to which it is neither a party nor has a pecuniary right or liability, the United States Supreme Court found the statute unconstitutional.

The purpose of a jury instruction is to convey a clear and correct understanding of the law of the case as it relates to all the parties involved. A charge that is substantially correct is sufficient when an error has not been given such undue prominence as to obscure issues of primary significance. St. George v. Lollis, 209 Minn. 322, 296 N.W. 523 (1941); See Gibbon Farmers Elevator Co. v. Herschmann, 160 Minn. 326, 200 N.W. 293 (1924). Therefore, although we find that the trial court may have erred in instructing that the jury could consider evidence of the cult’s financial support in assessing plaintiff’s credibility, because the instruction constituted a small part of an otherwise commendable exposition and did not affect the ultimate disposition of the case as evidenced by the award of $10,000 in punitive damages, we hold that the commission of the error, if any, does not merit reversal.

4. Plaintiff further challenges the decision of the trial court, charging that the court erred by directing a verdict in favor of the plaintiff’s former minister, Paul Sorlien. In so doing, plaintiff attributes to Paul Sorlien a degree of participation in the events in question that bears no relation to the actual facts of the case.

The active involvement of Paul Sorlien began when he accompanied his parishioner, Norman Jungclaus, to Moorhead, Minnesota to pick Susan up at the close of her examinations and then drove them to Minneapolis to the home of Veronica Morgel. Sorlien had become concerned about Susan following conversations with her parents and was previously acquainted with Morgel by reason of an informational seminar that they both attended on the subject of religious cults. The trio arrived at the Morgel residence at approximately 7 p. m. at which time Sorlien was called away to assist a parishioner who had been transferred unexpectedly to a Minneapolis hospital. Sorlien returned at approximately 11 p. m. and consequently was unaware of the circumstances surrounding Susan’s removal to the downstairs bedroom. Susan became hysterical when he walked downstairs to greet her, and he therefore immediately left the room. The next day Sorlien again entered the room and observed Susan curled up in a *132fetal position with her fingers in her ears. Upon seeing him, Susan once again became hysterical. Sorlien attributed her hysterical reactions to her indoctrination by The Way that ministers are “adversary, part of the devil.” Sorlien spent the remainder of the day visiting three parishioners in three different metropolitan hospitals. On Wednesday, Sorlien was present but not party to a conversation between Susan and another individual but later that afternoon Sorlien exchanged pleasantries with Susan and noticed that her appearance and demeanor were markedly different. On Thursday, he returned to Bird Island to make funeral arrangements for a parishioner and to teach a confirmation class. He had no other significant contacts or conversations with the Jungclauses or Susan following his departure.

Under the applicable standard recently reiterated in J. N. Sullivan. & Associates, Inc. v. F. D. Chapman Construction Co., 304 Minn. 334,231 N.W.2d 87 (1975), we find the evidence against Paul Sorlien insufficient to present a question of fact for the jury to decide, and accordingly, uphold the directed verdict of the trial court.3

5. As a final matter, plaintiff appeals the denial by the trial court of her motion to amend the complaint for the purpose of substituting the proper names of those previously identified in the complaint as John Doe, James Roe, Jane Doe and Mary Roe. Also included in the above motion was the further request to include an additional cause of action for civil conspiracy under 42 U.S.C. § 1985 (1976).4

Minn.R.Civ.P. 9.08 provides that when a litigant in his pleadings alleges ignorance as to the name of an opposing party, the opposing party may be designated by any name; after discovery of the true name, the pleadings may be amended accordingly. By identifying the parties in such manner, defendants are on notice that the complaint will be amended. Because of the perfunctory nature of the rule, we conclude that the trial court erred by failing to permit the substitution. See LaSalle Cartage Co. v. Johnson Brothers Wholesale Liquor Co., 302 Minn. 351, 225 N.W.2d 233 (1974). In respect to that part of the motion seeking the addition of a new federal cause of action, however, we find the trial court did not err. The addition of a new cause of action almost a year after commencement of the suit would have likely delayed the start of trial or prejudiced the adverse party. Leave to amend will only be granted when justice so requires. Minn.R. Civ.P. 15.01.

Neither in her brief nor in her notice of appeal does plaintiff indicate what relief she seeks as a result of this error. Because plaintiff only sought punitive damages of $10,000, for which she had already been compensated, the substitution of the remaining defendants would only have resulted in a symbolic award. Hence, under Minnesota’s harmless error rule, the refusal of the trial court to take such action did not appear to affect the substantial rights of the parties. Minn.R.Civ.P. 61. We therefore hold that the failure of the trial court to permit the substitution of the true and correct name of a party joined in a com*133plaint by a fictitious name does not constitute reversible error when doing so would have resulted only in a symbolic award.

Affirmed.

PETERSON, Justice

(concurring specially).

I concur in the result.

AMDAHL and SIMONETT, JJ„ not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

WAHL, Justice

(dissenting in part, concurring in part).

I must respectfully dissent. In every generation, parents have viewed their children’s religious and political beliefs with alarm and dismay if those beliefs were different from their own. Under the First Amendment, however, adults in our society enjoy freedoms of association and belief. In my view, it is unwise to tamper with those freedoms and with longstanding principles of tort law out of sympathy for parents seeking to help their “misguided” offspring, however well-intentioned and loving their acts may be. Whether or not, as the majority opinion asserts, The Way of Minnesota, Inc. is a “youth-oriented,” “pseudo-religious group” which pursues its “fundraising strategy” in such a way as to inflict physical and psychological harm on its members, emphasis on this characterization beclouds the purely legal issues which are presented by this appeal.

The first of those legal issues is whether, as a matter of law, any of the defendants in this case are guilty of false imprisonment of the plaintiff. The elements of the tort of false imprisonment are (1) words or acts by defendant intended to confine plaintiff, (2) actual confinement, and (3) awareness by plaintiff that she is being confined. Blaz v. Molin Concrete Products Co., 309 Minn. 382, 244 N.W.2d 277 (1976). Any imprisonment “which is not legally justifiable” is false imprisonment, Kleidon v. Glascock, 215 Minn. 417,10 N.W.2d 394 (1943); therefore, the fact that the tortfeasor acted in good faith is no defense to a charge of false imprisonment. Accord, Strong v. City of Milwaukee, 38 Wis.2d 564, 157 N.W.2d 619 (1968). Thus, although the majority opinion correctly concludes that evidence concerning the activities of The Way and the impact of those activities upon plaintiff may have been relevant to the question of whether defendants acted so willfully and maliciously as to justify an award of punitive damages, such evidence has little bearing on the issue of defendants’ liability for false imprisonment.

The unrebutted evidence shows that defendant Norman Jungclaus, the father of the 21-year-old plaintiff in this case, took his adult daughter, kicking and screaming, to a small bedroom in the basement of the Morgel home on Monday, May 23. Norman Jungclaus admitted that she did not go with him willingly. Plaintiff curled up on the bed, plugged her ears, and cried. Defendant Perkins testified that plaintiff screamed and cried and pleaded with several people to let her go, but her pleas were ignored. This situation continued until 3 a. m. Tuesday. At one point that morning, plaintiff flew at her father, and he held her arms around her from the back, in his words, “for maybe a half an hour, until she calmed down again.” Plaintiff testified that defendant Mills told her papers had been drafted to commit her to Anoka State Hospital if she continued to refuse to cooperate with the “deprogramming.”

In its memorandum accompanying the order denying plaintiff’s motion for judgment notwithstanding the verdict, the trial court stated:

It should be noted that there must be considerable room for doubt concerning that portion of the verdict finding that Norman Jungclaus did not participate in a false imprisonment. The evidence is unrebutted that he picked up his 21-year-old daughter Susan and took her into the basement without her permission or consent, and against her will. She remained there several days. However, Plaintiff stated that she was not seeking *134compensatory damages against her parents, and only $1.00 in punitive damages.

In that light, judgment notwithstanding verdict as to false imprisonment would be of no significance in the matter of compensatory damages. And whether or not Mr. Jungclaus's act was done maliciously or willfully so as to justify $1.00 punitive damages is clearly a matter for determination by the jury; and not the Court. Hence, judgment notwithstanding verdict against Norman Jungclaus as to false imprisonment must be denied. On practical grounds, a new trial will not be ordered for a potential $1.00 recovery in any event.

Thus, the trial court refused to grant judgment against Norman Jungclaus because any damages awarded would be insignificant. However, plaintiff’s complaint sought not only money damages but an injunction against further interference with her freedoms of religion, association, and expression. The value to plaintiff of a judgment in her favor, while not monetary, is nevertheless significant.

The majority opinion finds, in plaintiff’s behavior during the remainder of the 16-day period of “deprogramming,” a reasonable basis for acquitting defendant Jungclaus of the false imprisonment charge for the initial three days, during which time he admittedly held plaintiff against her will. Under this theory, plaintiff’s “acquiescence” in the later stages of deprogramming operates as consent which “relates back” to the events of the earlier three days, and constitutes a “waiver” of her claims for those days. Cases cited by the majority do not lend support to this proposition. Bustamonte addressed the meaning of “voluntary consent” to the search of an automobile by police in the context of a challenge based on Fourth Amendment grounds. In Faniel the court found that an employee, who was given a ride to her home by company personnel who intended to recover unauthorized electrical equipment, had not proved an absence of lawful consent sufficient to sustain a finding of false imprisonment.1

Moreover, Weiss does not lend support to the majority’s finding. While it is true that in Weiss the plaintiff testified that she was forcibly detained against her will, the court found her testimony not credible. Id. at 721. The court there found only that parents

have the right which all citizens have to peaceably dissuade Plaintiff of her particular religious views, provided they use no form of unlawful compulsion to effect their purpose. What occurred here was simply an effort, in private, to-persuade a willing listener to disavow the tenets of the Unification Church. * * *

It is clear that Plaintiff has the right to be free of any coercive attempt to speak with her * * *.

Id. at 722.

Certainly, parents who disapprove of or disagree with the religious beliefs of their adult offspring are free to exercise their own First Amendment rights in an attempt, by speech and persuasion without physical restraints, to change their adult children’s minds. But parents who engage in tortious conduct in their “deprogramming” attempts do so at the risk that the deprogramming will be unsuccessful and the adult children will pursue tort remedies against their parents. To allow parents’ “conviction that the judgmental capacity of their [adult] child is impaired [by her religious indoctrination]” to excuse their tortious conduct sets a dangerous precedent.

Here, the evidence clearly supported a verdict against Norman Jungclaus on the false imprisonment claim, and no reasonable basis existed for denying judgment notwithstanding the verdict. The trial court’s holding in this regard should be reversed.

The second issue which particularly concerns me was the instruction by the trial *135court that the jury could consider the fact that The Way paid plaintiff’s legal bills in assessing her credibility and awarding damages. I concur with the court’s holding that such an instruction is error, although in the context of this case harmless error. I write to emphasize the compelling reasons why such an instruction should not be given. First, the fact that The Way aided and encouraged plaintiff to bring the lawsuit has little to do with whether the defendants falsely imprisoned the plaintiff or whether they intentionally inflicted emotional distress on her. It is not uncommon for a layperson to talk to others and get advice before bringing a lawsuit. Nor is it uncommon for groups to provide money and other support to its members as they pursue individual causes of action. The contributions of the NAACP, which financially assists litigation aimed at eliminating racial barriers, were recognized, as the majority opinion notes, in NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed. 405 (1963). Such aid not only allows a person to exercise his or her right to seek redress through our courts, it also effectuates that fundamental underpinning of our judicial system.

In the instant case, to admit evidence that The Way paid plaintiff’s attorneys fees improperly shifted the jury’s attention from the nature of defendants’ acts to the acceptability of The Way. Such a shift of attention could unduly prejudice plaintiff because she exercised her First Amendment right of association with an unpopular religious group.

Furthermore, that evidence was irrelevant to the motive for her claim for damages. The reason plaintiff altered the amounts of compensation sought from her parents was, according to her testimony, her belief that she had to sue for money. Only after the suit was commenced did she learn that she could sue for legal protection. Plaintiff was entitled to seek compensation from the defendants individually, all together, or in any combination. Therefore, that she chose to sue her parents for a token amount has little to do with who was paying the legal fees.

The fact that a group or others support a plaintiff and may derive some benefit unrelated to plaintiff’s cause of action should not be introduced at trial and considered by the jury as it determines plaintiff’s credibility and the amount of damages to be awarded. The ultimate effect can only be to deter plaintiffs and defendants from accepting assistance from groups or causes which may not be popular in our society. This would mean that in suits like the present one, plaintiffs with unpopular beliefs who cannot afford costly legal representation must forgo their rights to seek redress in our courts or utilize the courts at the risk that evidence of support from their minority religious or political group may be used to undermine all or part of their claims.

Lastly, I would address plaintiff’s claim that the trial court erred in denying her motion to amend her complaint or add a new cause of action. I agree that the motion was properly denied because it was untimely, but I would not conclude, as suggested by footnote 4 of the majority opinion, that defendant parents’ attempts to “deprogram” their daughter from her religious beliefs did not constitute a violation of her rights under 42 U.S.C. § 1985(3). Although one federal court has so held, see Weiss v. Patrick, 453 F.Supp. 717, 722 (D.R.I.), aff’d, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), a number of courts have reached the contrary conclusion. In Augenti v. Cappellini, 84 F.R.D. 73 (M.D.Pa.1979), for example, defendants’ arguments that their attempts to deprogram their son “were motivated solely by parental concern * * * to further his physical and mental health” did not persuade the court that the “invidiously discriminatory animus” necessary for a § 1985(3) action was lacking. Id. at 78. Several other cases interpreting the legislative history of § 1985(3) have determined that the protection of the provisions does extend to religious groups. See Jackson v. Associated Hospital Service, 414 F.Supp. 315 (E.D.Pa.1976), aff’d, 549 F.2d 795 (3rd Cir.), cert. denied, 434 U.S. 832, 98 *136S.Ct. 117, 54 L.Ed.2d 93 (1977); Rankin v. Howard, 457 F.Supp. 70, 74-75 (D.Ariz. 1978); cf. Mandelkorn v. Patrick, 359 F.Supp. 692, 697 (D.D.C.1973). In reaching this conclusion, the court in Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978) observed:

While religious status may differ from racial status because it is not a congenital and inalterable trait, membership in a minority religious group, like membership in a minority racial group, has often excited the fear, hatred and irrationality of the majority. Two thousand years of human history compellingly prove that no easier road to martyrdom is found than in adherence to an unpopular religious faith. For these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of § 1985(3).

Id. at 491.

OTIS, Justice

(dissenting in part).

I join in the views expressed by Justice Wahl, and particularly take issue with a rule which authorizes what is euphemistically described as “limitations upon the adult child’s mobility” whenever a parent, or indeed a stranger acting for a parent, subjectively decides, without the benefit of a professional opinion or judicial intervention, that the adult child’s “judgmental capacity” is impaired and that she should be “extricated” from what is deemed to be a religious or pseudo-religious cult.

The rule adopted by the majority states: We hold that where parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or pseudo-religious cult, and the child at some juncture assents to the actions in question, limitations upon the child’s mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.

We furnish no guidelines or criteria for what constitutes “impaired judgmental capacity” other than the fact that the adult child has embraced an unorthodox doctrine with a zeal which has given the intervenor cause for alarm, a concern which may be well-founded, ill-founded, or unfounded.

Nor do we specify whether the “cult” must be for a benign or a malevolent purpose. It is enough that the intervenor has reason to believe it is a cult i. e. “an unorthodox system of belief” and that at some juncture during the adult child’s involuntary confinement, she “assents,” that is to say, yields or surrenders, possibly from exhaustion or fatigue, and possibly for a period only long enough to regain her composure.

If there is any constitutional protection we should be slow to erode it is the right of serious-minded people, young or old, well-adjusted, or maladjusted, to search for religious or philosophical fulfillment in their own way and in their own time without the interference of meddling friends or relatives, however well-intentioned they may be.

At age 21, a daughter is no longer a child. She is an adult. Susan Peterson was not only an adult in 1976 but she was a bright, well-educated adult. For whatever reason, she was experiencing a period of restlessness and insecurity which is by no means uncommon in students of that age. But to hold that for seeking companionship and identity in a group whose proselyting tactics may well be suspect, she must endure without a remedy the degrading and humiliating treatment she received at the hands of her parents, is, in my opinion, totally at odds with the basic rights of young people to think unorthodox thoughts, join unorthodox groups, and proclaim unorthodox views. I would reverse the denial of recovery as to that cause of action.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

The plaintiff in this case, William Eilers, has moved the Court to enter a directed verdict against the defendants on his claims that the defendants falsely imprisoned him and violated his civil rights during a deprogramming attempt in 1982. Both sides have submitted briefs on the question and the Court has heard oral argument.

After careful consideration the Court has decided as follows:

1. Plaintiffs motion for a directed verdict on the issue of false imprisonment is granted and the Court holds, as a matter of law, that plaintiff William Eilers was falsely imprisoned without legal justification.

2. Plaintiffs motion for a directed verdict with respect to 42 U.S.C. § 1985(3) is granted as to certain elements of the plaintiffs claim that a conspiracy on the part of the defendants deprived him of certain of his federal constitutional rights.

FACTS

The evidence in this case has established the following facts. The plaintiff William Eilers and his pregnant wife Sandy were abducted from outside a clinic in Winona, Minnesota in the early afternoon of Monday, August 16, 1982, by their parents and *1095relatives and by the defendant deprogrammers who had been hired by the parents of the plaintiff and his wife. The plaintiff was 24 years old at the time and his wife Sandy was 22. The couple was living on a farm near Galesville, Wisconsin and had traveled to Minnesota for Sandy’s pre-natal examination.

At the time of the abduction, Bill and Sandy Eilers were members of the religious group Disciples of the Lord Jesus Christ. There is ample evidence that this group is an authoritarian religious fellowship directed with an iron hand by Brother Rama Behera. There is also evidence that Bill Eilers’ personality, and to some extent his appearance, changed substantially after he became a member of the group. These changes were clearly of great concern to members of the plaintiff’s family. However, other than as they may have affected the intent of the parents of Bill and Sandy Eilers in the actions they took in seizing Bill and Sandy, the beliefs and practices of the Disciples of the Lord Jesus Christ should not be, and are not, on trial in this case.

While leaving the Winona Clinic on August 16, 1982 the plaintiff, who was on crutches at the time due to an earlier fall, was grabbed from behind by two or more security men, forced into a waiting van, and driven to the Tau Center in Winona, Minnesota.1 Forcibly resisting, he was carried by four men to a room on the top floor of the dormitory-style building. The windows of this room were boarded over with plywood, as were the windows in his bathroom and in the hallway of the floor. The telephone in the hallway had been dismantled.

The plaintiff was held at the Tau Center for five and one-half days and subjected to the defendants’ attempts to deprogram him. Shortly after his arrival at the Tau Center, and after a violent struggle with his captors, the plaintiff was handcuffed to a bed. He remained handcuffed to the bed for at least the first two days of his confinement. During this initial period, he was allowed out of the room only to use the bathroom, and was heavily guarded during those times. On one occasion, the plaintiff dashed down the hall in an attempt to escape, but was forcibly restrained and taken back to the room. After several days of resistance, the plaintiff changed tactics and apparently pretended to consent to his confinement.

The defendants and the plaintiff’s relatives had agreed in advance of the abduction that the plaintiff would be kept at the Tau Center for one week, regardless of whether the plaintiff consented to their actions. At no time during the week was the plaintiff free to leave the Tau Center, nor at any time were reasonable means of escape available to him. Three of the eight people hired by the parents were designated “security men.” These individuals, described by witnesses as at least six feet tall and weighing over 200 pounds, guarded the exits on the floor at all times.

On the evening of Saturday, August 21, 1982, as the plaintiff was leaving the Tau Center to be transported to Iowa City, Iowa for further deprogramming, he took advantage of his first opportunity to escape and jumped from the car in which he was riding. Local residents, attracted by the plaintiff’s calls for help, assisted the plaintiff in making his escape and the police were summoned.2

The evidence has also shown that within three weeks before the abduction occurred, the plaintiff’s relatives had contacted authorities in Trempealeau County, Wisconsin in an attempt to have the plaintiff civilly committed. Family members have testified that they believed the plaintiff was suicidal because of a letter he had written to his *1096grandmother before joining the Disciples of the Lord Jesus Christ in which he wrote that demons were attacking his mind and telling him to kill himself rather than go to the Lord. Defendants’ Exhibit A at 13-14. Joyce Peterson, a psychiatric social worker, interviewed the plaintiff in person on July 26, 1982. After interviewing the plaintiff and consulting with the Trempealeau County Attorney, Peterson informed the plaintiff’s relatives that no legal grounds existed in Wisconsin for confining the plaintiff because he showed no signs of being a danger to himself or to others. The defendants in this case were aware of that information at the time they abducted and held the plaintiff.

DISCUSSION

In considering the plaintiff’s motion for a directed verdict, the Court is required to view the evidence in the light most favorable to the defendants and to resolve all conflicts in the evidence in the defendants’ favor. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983). A directed verdict motion should be granted only when reasonable jurors could not differ as to the conclusions to be drawn from the evidence. Id.

The plaintiff has alleged two main causes of action against the defendants: false imprisonment and conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). These claims will be discussed separately.

A. False Imprisonment

The plaintiff’s first claim is that the defendants’ conduct in confining him at the Tau Center constituted false imprisonment for which the defendants had no legal justification. False imprisonment consists of three elements:

1) words or acts intended to confine a person;

2) actual confinement; and

3) awareness by the person that he or she is confined.

Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976); Restatement (Second) of Torts § 35 (1965).

The evidence in this case has overwhelmingly established each of the elements of false imprisonment. By their own admission, the defendants intended to confine the plaintiff for at least one week. While the defendants maintain that their purpose was to help the plaintiff, it is not a defense to false imprisonment that the defendants may have acted with good motives. Malice toward the person confined is not an element of false imprisonment. Strong v. City of Milwaukee, 38 Wis.2d 564, 567,157 N.W.2d 619, 621 (1968); Witte v. Haben, 131 Minn. 71, 74, 154 N.W. 662, 663 (1915); W. Prosser, Law of Torts 48 (4th ed. 1971).

There is also no question that the plaintiff was actually confined. Relying on the Minnesota Supreme Court’s decision in Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981), the defendants contend that there was no actual confinement because there is evidence that the plaintiff consented to the defendants’ actions, at least by the fourth day of his confinement.3 The plaintiff, in con*1097trast, has testified that he merely pretended to consent in order to gain an opportunity to escape. The plaintiff's apparent consent is not a defense to false imprisonment. Many people would feign consent under similar circumstances, whether out of fear of their captors or as a means of making an escape. But in this case, unlike the Peterson case relied on by the defendants,4 it is undisputed that the plaintiff was at no time free to leave the Tau Center during the week in question, nor were any reasonable means of escape available to him. Under these circumstances, the Court finds, in agreement with many other authorities, that the plaintiffs apparent consent is not a defense to false imprisonment. 32 Am. Jur.2d False Imprisonment § 15 (1982); Restatement (Second) of Torts § 36 (1965). The Court therefore holds, as a matter of law, that the plaintiff has proven the necessary elements of false imprisonment.

The next question is, given that the defendants falsely imprisoned the plaintiff, were their actions legally justified so as to preclude liability for false imprisonment? As justification for their actions, the defendants rely on the defense of necessity. They claim that the confinement and attempted deprogramming of the plaintiff was necessary to prevent him from committing suicide or from otherwise harming himself or others. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975).

The defense of necessity has three elements.5 The first element is that the defendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others.6 State v. Johnson, 289 Minn. 196, 199-200, 183 N.W.2d 541, 543 (1971); People v. Patrick, 126 Cal.App.3d 952, 961, 179 Cal-Rptr. 276, 282 (1981); People v. Patrick, 541 P.2d 320, 322 (Colo.Ct.App. 1975); Restatement (Second) of Torts § 892(D) comment a (1979).

*1098It is not clear that such a danger existed on August 16,1982. The alleged threats of suicide made by the plaintiff were contained in a letter dated June 14, 1982, and that letter recounted impressions the plaintiff had had some time earlier. Moreover, Joyce Peterson, the psychiatric social worker who personally interviewed the plaintiff on July 26, 1982, concluded in her report, and reported to the plaintiffs relatives, that the plaintiff was not dangerous to himself or to others. Nevertheless, viewing the evidence in the light most favorable to the defendants, the Court will assume for purposes of this motion that the plaintiff was in imminent danger of causing physical injury to himself or to others.

The second and third elements of the necessity defense are intertwined. The second element is that the right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975) (dictum); Annot., 92 A.L.R.2d 580 (1963). The third element is that the actor must use the least restrictive means of preventing the apprehended harm. People v. Patrick, 126 Cal.App.3d 952, 960, 179 Cal.Rptr. 276, 282 (1981); W. LaFave and A. Scott, Criminal Law 387 (1972); cf. Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980) (where religious beliefs are implicated, first amendment requires resort to least restrictive alternative).

In this case, the defendants’ conduct wholly fails to satisfy either of these elements of the necessity defense. Once having gained control of the plaintiff, the defendants had several legal options available to them. They could have:

1) turned the plaintiff over to the police;

2) sought to initiate civil commitment proceedings against the plaintiff pursuant to Minn.Stat. § 253B.07 (1982);

3) sought professional psychiatric or psychological help for the plaintiff with the possibility of emergency hospitalization if necessary pursuant to Minn.Stat. § 253B.05 (1982).

At no time did the defendants attempt, or even consider attempting, any of these lawful alternatives during the five and one-half days they held the plaintiff, the first five of which were business days. Instead, they took the plaintiff to a secluded location with boarded-up windows, held him incommunicado, and proceeded to inflict their own crude methods of “therapy” upon him — methods which even the defendants’ own expert witness has condemned. Well aware that the police were searching for the plaintiff, the defendants deliberately concealed the plaintiff’s location from the police.

It must be emphasized that the Minnesota Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the basis of mental illness. Minn.Stat. § 253B.07 et seq. (1982); see generally Janus and Wolfson, The Minnesota Commitment Act of 1982: Summary and Analysis, 6 Hamline L.Rev. 41 (1983). Those procedures include examination of the proposed patient by qualified professionals, Minn.Stat. § 253B.07, subd. 1 (1982), and a judicial determination that the proposed patient is dangerous and in need of treatment, id., subd. 6. Manifold procedural protections, including the right to counsel, Minn.Stat. § 253B.03, subd. 9 (1982), are afforded the proposed patient at all stages of this civil commitment proceeding. Obviously, none of these protections were afforded the plaintiff in this case.

Minnesota law also provides that, in situations where there is not time to obtain a court order, a person may be admitted or held for emergency care and treatment in a hospital, without a court order, upon a written statement by a licensed physician or psychologist that the person is mentally ill and is in imminent danger of causing injury to himself or to others. Minn.Stat. § 253B.05, subd. 1 (1982). The defendants in this case — unlicensed and untrained individuals — made no effort to obtain any such *1099statement from a licensed physician or psychologist.

The defendants’ failure to even attempt to use the lawful alternatives available to them is fatal to their assertion of the necessity defense. Where the Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the ground of mental illness, not even parents or their agents acting under the best of motives are entitled to disregard those procedures entirely.7

The Court has assumed for the purposes of this motion that the defendants were justified in initially restraining the plaintiff based upon their belief that he was in imminent danger of harming himself or others. But even under those circumstances, the defense of necessity eventually dissipates as a matter of law. No specific time limit can be set, because the period during which an actor is acting out of necessity will vary depending on the circumstances of each case. In this particular case, however, where the defendants held the plaintiff, a 24-year-old adult, for five and one-half days with no attempt to resort to lawful alternatives available to them, the Court could not sustain a jury verdict in the defendants’ favor on the issue of false imprisonment. Accordingly, the Court rules as a matter of law that the plaintiff was falsely imprisoned without justification. The issue of what amount of damages, if any, the plaintiff suffered from this false imprisonment is a question for the jury.

B. Section 1985(3)

The next claim upon which the plaintiff has moved for a directed verdict is that the defendants conspired to and did deprive him of his federal constitutional rights in violation of 42 U.S.C. § 1985(3). The Court will direct a verdict as to some, but not all, of the elements of this claim.

A cause of action under section 1985(3) consists of the following elements:

1) a conspiracy;

2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws;

3) an act or acts in furtherance of the conspiracy; and

4) an injury to the person or property of a citizen or a deprivation of the rights and privileges of any citizen.

Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

Three of these elements are clearly present in this case. By their own admission, the defendants planned and conspired to abduct the plaintiff and to hold him against his will. They committed several acts in furtherance of this conspiracy including seizing the plaintiff at the Winona Clinic, transporting him to the Tau Center, and holding him there against his will for five and one-half days. These actions were in clear violation of the plaintiff’s constitutional rights, including his right not to be deprived of liberty without due process of law, see Taylor v. Gilmartin, 686 F.2d 1346, 1358 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 *1100(1983), and his right to freedom of interstate travel,8 see Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). The Court holds as a matter of law that the plaintiff has established the first, third, and fourth elements of his section 1985(3) cause of action.

The remaining element is that the conspiracy be for the purpose of depriving the plaintiff of the equal protection of the laws. The United States Supreme Court has interpreted this element as requiring that the defendants’ conduct be motivated by class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. In other words, in order for the plaintiff to recover under section 1985(3), the defendants must have taken action against him because of his membership in a group or class that is protected by that statute. The Court has previously ruled in this case that the religious group Disciples of the Lord Jesus Christ is a group protected by the statute. See, e.g., Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Action v. Gannon, 450 F.2d 1227, 1231-32 (8th Cir.1971) (en banc); Cooper v. Molko, 512 F.Supp. 563, 569 (N.D.Cal.1981); Comment, The Deprogramming of Religious Sect Members: A Private Right of Action Under Section 1985(3), 74 N.W.U.L.Rev. 229 (1979). The remaining question is whether the defendants took action against the plaintiff because of an animus toward that group or, as the defendants contend, because of a concern for the welfare of the plaintiff. The Court finds that the defendants’ motivation is an issue upon which reasonable jurors could differ. See, e.g., Augenti v. Cappellini, 84 F.R.D. 73, 78 (M.D.Pa.1979). The Court therefore denies the plaintiff’s motion for a directed verdict on this element of the plaintiff’s section 1985(3) cause of action.

C. Conclusion

This will not be a popular decision. While the Court has substantial sympathy for the feelings and reactions of the parents of Bill and Sandy Eilers, this Court is sworn to uphold the law and the Constitution of the United States. If the basic rights of an American citizen are not recognized in a federal court by a federal judge, where will they be recognized?

Based on the foregoing, IT IS ORDERED that the plaintiff's motion for a directed verdict is granted as to his claim for false imprisonment (Count IV of the Second Amended Complaint), and as to certain elements of his 42 U.S.C. § 1985(3) claim (Count I of the Second Amended Complaint) described herein. The plaintiff’s motion is in all other respects denied.

TRAYNOR, J.

On February 1, 1948, Peter Kobzeff signed a contract with the Acme Brewing Company to collect rubbish from the latter's brewery. Kobzeff had been in the rubbish business for several years and was able to secure the contract because Acme was dissatisfied with the service then being provided by another collector, one Abramoff. Although Kobzeff signed the contract, it was understood that the work should be done by John Siliznoff, Kobzeff's son-*334in-law, whom Kobzeff wished to assist in establishing a rubbish collection business.

Both Kobzeff and Abramoff were members of the plaintiff State Rubbish Collectors Association, but Siliznoff was not. The by-laws of the association provided that one member should not take an account from another member without paying for it. Usual prices ranged from five to ten times the' monthly rate paid by the customer, and disputes were referred to the board of directors for settlement. After Abramoff lost the Acme account he complained to the association, and Kobzeff was called upon to settle the matter. Kobzeff and Siliznoff took the position that the Acme account belonged to Siliznoff, and that he was under no obligation to pay for it. After attending several meetings of plaintiff’s board of directors Siliznoff finally agreed, however, to pay Abramoff $1,850 for the Acme account and join the association. The agreement provided that he should pay $500 in 30 days and $75 per month thereafter until the whole sum agreed upon was paid. Payments were to be made through the association, and Siliznoff executed a series of promissory notes totaling $1,850. None of these notes was paid, and in 1949 plaintiff association brought this action to collect the notes then payable. Defendant cross-complained and asked that the notes be cancelled because of duress and want of consideration. In addition he sought general and exemplary damages because of assaults made by plaintiff and its agents to compel him to join the association and pay Abramoff for the Acme account. The jury returned a verdict against plaintiff and for defendant on the complaint and for defendant on his cross-complaint. It awarded him $1,250 general and special damages and $7,500 exemplary damages. The trial court denied a motion for a new trial on the condition that defendant consent to a reduction of the exemplary damages to $4,000. Defendant filed the required consent, and plaintiff has appealed from the judgment.

Plaintiff’s primary contention is that the evidence is insufficient to support the judgment. Defendant testified that shortly after he secured the Acme account, the president of the association and its inspector, John Andikian, called on him and Kobzeff. They suggested that either a settlement be made with Abramoff or that the job be dropped, and requested Kobzeff and defendant to attend a meeting of the association. At this meeting defendant was told that the *335association “ran all the rubbish from that office, all the rubbish hauling, ’ ’ and that if he did not pay for the job they would take it away from him. “ ‘We would take it away, even if we had to haul for nothing’ . . . [0]ne of them mentioned that I had better pay up, or else.” Thereafter, on the day when defendant finally agreed to pay for the account, Andikian visited defendant at the Rainier Brewing Company, where he was collecting rubbish. Andikian told defendant that “ ‘We will give you up till tonight to get down to the board meeting and make some kind of arrangements or agreements about the Acme Brewery, or otherwise we are going to beat you up.’ . . . He says he either would hire somebody or do it himself. And I says, ‘Well, what would they do to me f ’ He says, well, they would physically beat me up first, cut up the truck tires or burn the truck, or otherwise put me out of business completely. He said if I didn’t appear at that meeting and make some kind of an agreement that they would do that, but he says up to then they would let me alone, but if I walked out of that meeting that night they would beat me up for sure.” Defendant attended the meeting and protested that he owed nothing for the Acme account and in any event could not pay the amount demanded. He was again told by the president of the association that “that table right there [the board of directors] ran all the rubbish collecting in Los Angeles and if there was any routes to be gotten that they would get them and distribute them among their members. ...” After two hours of further discussion defendant agreed to join the association and pay for the Acme account. •He promised to return the next day and sign the necessary papers. He testified that the only reason “they let me go home, is that I promised that I would sign the notes the very next morning.” The president “made me promise on my honor and everything else, and I was scared, and I knew I had to come back, so I believe he knew I was scared and that I would come back. That’s the only reason they let me go home.” Defendant also testified that because of the fright he suffered during his dispute with the association he became ill and vomited several times and had to remain away from work for a period of several days.

Plaintiff contends that the evidence does not establish an assault against defendant because the threats made all related to action that might take place in the future; that neither Andikian nor members of the board of directors *336threatened immediate physical harm to defendant. (See Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 6-7 [146 P.2d 57]; Restatement, Torts, § 29.) We have concluded, however, that a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.

In the past it has frequently been stated that the interest in emotional and mental tranquillity is not one that the law will protect from invasion in its own right. (Newman v. Smith, 77 Cal. 22, 27 [18 P. 791]; Easton v. United Trade School Contr. Co., 173 Cal. 199, 204 [159 P. 597, L.R.A. 1917A 394] ; Cook v. Maier, 33 Cal.App.2d 581, 584 [92 P.2d 434] ; see 52 Am.Jur., Torts, § 45, p. 388, and cases cited; Bohlen, Bight to Recover for Injury Resulting from Negligence Without Impact, 41 Am.L.Reg., N.S., 141, 142-143.) As late as 1934 the Restatement of Torts took the position that ‘ ‘ The interest in mental and emotional tranquillity and, therefore, in freedom from mental and emotional disturbance is not, as a thing in itself, regarded as of sufficient importance to require others to refrain from conduct intended or recognizably likely to cause such a disturbance.” (Restatement, Torts, § 46, comment c.) The Restatement explained the rule allowing recovery for the mere apprehension of bodily harm in traditional assault cases as an historical anomaly (§ 24, comment c), and the rule allowing recovery for insulting conduct by an employee of a common carrier as justified by the necessity of securing for the public comfortable as well as safe service. (§ 48, comment c.)

The Restatement recognized, however, that in many cases mental distress could be so intense that it could reasonably be foreseen that illness or Other bodily harm might result. If the defendant intentionally subjected the plaintiff to such distress and bodily harm resulted, the defendant would be liable for negligently causing the plaintiff bodily harm. (Restatement, Torts, §§ 306, 312.) Under this theory the cause of action was not founded on a right to be free from intentional interference with mental tranquillity, but on the right to be free from negligent interference with physical well-being. A defendant who intentionally subjected another to mental distress without intending to cause bodily harm would nevertheless be liable for resulting bodily harm *337if he should have foreseen that the mental distress might cause such harm.

The California cases have been in accord with the Restatement in allowing recovery where physical injury resulted from intentionally subjecting the plaintiff to serious mental distress. (Emden v. Vitz, 88 Cal.App.2d 313, 319 [198 P.2d 696] ; Bowden v. Spiegel, Inc., 96 Cal.App.2d 793, 794-795 [216 P.2d 571]; Richardson v. Pridmore, 97 Cal.App.2d 124, 129-130 [217 P.2d 113, 17 A.L.R.2d 929].)

The view has been forcefully advocated that the law should protect emotional and mental tranquillity as such against serious and intentional invasions (see Goodrich, Emotional Disturbance as Legal Damages, 20 Mich.L.Rev. 497, 508-513; Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1064-1067; Wade, Tort Liability for Abusive and Insulting Language, 4 Vanderbilt L. Rev. 63, 81-82), and there is a growing body of case law supporting this position. (See, e.g., Barnett v. Collection Service Co., 214 Iowa 1303, 1312 [242 N.W. 25] ; Richardson v. Pridmore, 97 Cal.App.2d 124, 129-130 [217 P.2d 113, 17 A.L.R.2d 929]; Prosser, Torts, § 11, p. 54 et seq., and cases cited; 15 A.L.R.2d 108.) In recognition of this development the American Law Institute amended section 46 of the Restatement of Torts in 1947 to provide:

“One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.”

In explanation it stated that “The interest in freedom from severe emotional distress is regarded as of sufficient importance to require others to refrain from conduct intended to invade it. Such conduct is tortious. The injury suffered by the one whose interest is invaded is frequently far more serious to him than certain tortious invasions of the interest in bodily integrity and other legally protected interests. In the absence of a privilege, the actor’s conduct has no social utility; indeed it is anti-social. No reason or policy requires such an actor to be protected from the liability which usually attaches to the wilful wrongdoer whose efforts are successful. ’ ’ (Restatement of the Law, 1948 Supplement, Torts, § 46, comment d.)

There are" persuasive arguments and analogies that support the recognition of a right to be free from serious, intentional, and unprivileged invasions of mental and emo*338tional tranquillity. . If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of (Deevy v. Tassi, 21 Cal.2d 109, 120 [130 P.2d 389]; Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 513 [111 P. 534, 139 Am.St.Rep. 134, 31 L.R.A. N.S. 559]), and in the case of many torts, such as assault, battery, false imprisonment, and defamation,- mental suffering will frequently constitute the principal element of damages. (See Deevy v. Tassi, supra; Restatement, Torts, § 905, comment c.) In cases where mental suffering constitutes a major element of damages it is anomalous to deny recovery because the defendant’s intentional misconduct fell short of producing some physical injury.

It may be contended that to allow recovery in the absence of physical injury will open the door to unfounded claims and a flood of litigation, and that the requirement that there be physical injury is necessary to insure that serious mental suffering actually occurred. The jury is ordinarily in a better position, however, to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury. From their own experience jurors are aware of the extent and character of the disagreeable emotions that may result from the defendant’s conduct, but a difficult medical question is presented when it must be determined if emotional distress resulted in physical injury. (See Smith, Relation of Emotions to Injury and Disease, 30 Va.L.Rev. 193, 303-306.) Greater proof that mental suffering occurred is found in the defendant’s conduct designed to bring it about than in physical injury that may or may not have resulted therefrom.

That administrative difficulties do not justify the denial of relief for serious invasions of mental and emotional tranquillity is demonstrated by the cases recognizing the right of privacy. Recognition of that right protects mental tranquillity from invasion by unwarranted and undesired publicity. (Melvin v. Reid, 112 Cal.App. 285, 289 [297 P. 91]; Restatement, Torts, § 867, comments c and d.) As in the ease of the protection of mental tranquillity from other forms of invasion, difficult problems in determining the kind and extent of invasions that are sufficiently serious to be actionable are presented. Also the public interest in the free dissemination of news must be considered. Nevertheless courts have concluded that the problems presented are *339not so insuperable that they warrant the denial of relief altogether.

In the present case plaintiff caused defendant to suffer extreme fright. By intentionally producing such fright it endeavored to compel him either to give up the Acme account or pay for it, and it had no right or privilege to adopt such coercive methods in competing for business. In these circumstances liability is clear.

Plaintiff contends that the trial court erred in admitting evidence of threats made by Andildan and members of the board of directors in 1950 against other nonmembers of the association to compel them to relinquish accounts they had solicited from customers of members of the association. This evidence was admitted to show the methods adopted by the association to protect its members from competition by nonmembers. It was relevant and admissible for that purpose. (Evans v. Gibson, 220 Cal. 476, 482 [31 P.2d 389] ; see People v. Coefield, 37 Cal.2d 865, 869 [237 P.2d 570] ; 2 Wigmore on Evidence [3d ed.] §§ 304, 371, pp. 202, 300.)

Plaintiff contends that the trial court erred in excluding evidence that rubbish accounts, including the Acme account, constitute property rights and have definite property values in the rubbish collecting business. It contends that because it was not allowed to prove the value of rubbish accounts it could not prove that there was consideration for the notes signed by defendant. There would be merit in plaintiff’s contention if defendant had given the notes in exchange for an assignment of the Acme contract or in connection with the purchase of a going business. He secured the account, however, not through Abramoff, but by soliciting it from Acme. He had a right to compete for this business in the open market and was under no obligation to pay Abramoff for it. (Continental Car-Na-Var Corp. v. Moseley, 24 Cal.2d 104, 110 [148 P.2d 9].) Accordingly, the trial court correctly concluded that evidence of its value was immaterial.

Plaintiff contends that the trial court erred in instructing the jury that no legal arbitration had taken place between the parties. It points out that the by-laws provide for arbitration between the members and contends that its dispute with defendant was arbitrated under these provisions. Defendant did not join the association, however, until after the dispute over the Acme account was purportedly settled, and there is no evidence that he agreed before that time to *340submit the controversy to the association’s board of directors for settlement. (See Code Civ. Proc., § 1280 et seq.)

The trial court instructed the jury that “an unlawful intent by one to inflict injury upon the person of another is that intent to act which wilfully disregards the right of a person to live without being placed in fear of personal safety.” Because specific instructions were not given covering all the elements of defendant’s cause of action, plaintiff contends that this specific instruction on intent allowed the jury to return a verdict for defendant based on a finding of an unlawful intent alone. The instruction does not, however, so inform the jury, and had plaintiff desired more specific instructions on the law of the case, it should have requested them. (Code Civ. Proc., § 607a; Hardy v. Schirmer, 163 Cal. 272, 275 [124 P. 993]; Perry v. City of San Diego, 80 Cal.App.2d 166, 171-172 [181 P.2d 98].)

Plaintiff contends that counsel for defendant was guilty of prejudicial misconduct by making an inflammatory closing argument to the jury. No objections or assignments of misconduct were made at the trial, and the court was not asked to instruct the jury to disregard the challenged remarks. It is therefore too late to raise the point on appeal. (Cope v. Davison, 30 Cal.2d 193, 202 [180 P.2d 873, 171 A.L.R. 667]; Aydlott v. Key System Transit Co., 104 Cal.App. 621, 628 [286 P. 456].)

Plaintiff contends that the judgment against it cannot stand because the jury exonerated its agent Andikian, who was the principal tort feasor. The jury did not exonerate Andikian, however; the verdict was merely silent as to him. There is nothing in the pleadings or the instructions that indicates that the failure to find with respect to Andikian was intended as a verdict in his favor, and the transcript of the proceedings on the motion for new trial indicates that it was an inadvertence on the part of the jury caused by the failure to provide it with a form for a verdict against him. Under these circumstances plaintiff cannot attack the judgment against it because of the failure of the jury to return a verdict against its agent. (Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 279-280 [231 P.2d 816], and cases cited.)

Plaintiff contends finally that the damages were excessive. The question of excessiveness is addressed primarily to the discretion of the trial court, and an award that stands approved by that court will not be disturbed on appeal un*341less it appears that the jury was influenced by passion or prejudice. (Deevy v. Tassi, 21 Cal.2d 109, 120-121 [130 P.2d 389].) With respect to the general damages the trial court concluded that the jury was not so influenced, and on the record before us we cannot say that it was. The excessiveness, if any, of the award of exemplary damages was cured by the trial court’s reduction of those damages to $4,000. (See Deevy v. Tassi, supra, 21 Cal.2d 109, 121; Finney v. Lockhart, 35 Cal.2d 161, 164 [217 P.2d 19] ; Parrott v. Bank of America, 97 Cal.App.2d 14, 25 [217 P.2d 89].)

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Schauer, J., and Spence, J., concurred.

*447Chief Justice Roberts

delivered the opinion of the Court.

A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case.

*448I

A

Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Brief for Rutherford Institute as Amicus Curiae 7, n. 14.

Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral. Local newspapers provided notice of the time and location of the service.

Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary *449fence. App. to Brief for Appellants in No. 08-1026 (CA4), pp. 2282-2285 (hereinafter App.). That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. Id., at 3758. The. Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id., at 2168, 2371, 2286, 2293.

The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. Id., at 2084-2086.1

B

Snyder filed suit against Phelps, Phelps’s daughters, and the Westboro Baptist Church (collectively Westboro or the *450church) in the United States District Court for the District of Maryland under that court’s diversity jurisdiction. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. West-boro moved for summary judgment contending, in part, that the church’s speech was insulated from liability by the First Amendment. See 533 F. Supp. 2d 567, 570 (2008).

The District Court awarded Westboro summary judgment on Snyder’s claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary elements of those torts. Id., at 572-573. A trial was held on the remaining claims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it. Id., at 588-589. Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated pre-existing health conditions.

A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, including a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.

In the Court of Appeals, Westboro’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected West-boro’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First *451Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222-224.2

We granted certiorari. 559 U. S. 990 (2010).

II

To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones, 281 Md. 560, 565-566, 380 A. 2d 611, 614 (1977). The Free Speech Clause of the First Amendment — “Congress shall make no law . . . abridging the freedom of speech” — can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50-51 (1988).3

Whether the First Amendment prohibits holding West-boro liable for its speech in this ease turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[SJpeech on ‘matters of public concern’... is ‘at the heart of the First Amendment’s *452protection.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).

“ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145-147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).

We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that “the boundaries of the public concern test are not well defined.” San Diego v. Roe, 543 U. S. 77, 83 (2004) (per curiam). Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.

*453Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83-84. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492-494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387-388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987).

Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” 472 U. S., at 762. The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” 543 U. S., at 84.

Deciding whether speech is of public or private concern requires us to examine the “ 'content, form, and context’ ” of that speech, '"as revealed by the whole record.’” Dun & Bradstreet, supra, at 761 (quoting Connick, supra, at 147-148). As in other First Amendment cases, the court is obligated “to 'make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Bose Corp. v. Consumers Union of United States, *454Inc., 466 U. S. 485, 499 (1984) (quoting New York Times, supra, at 284-286). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for lEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781-3787. While these messages may fall short of refined social or political commentary, the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs — such as “You’re Going to Hell” and “God Hates You” — were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.

Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech — its connection with his son’s funeral — makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern *455society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U. S., at 146, and the funeral setting does not alter that conclusion.

Snyder argues that the church members in fact mounted a personal attack on Snyder and his family, and then attempted to “immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its “honestly believed” views on public issues. Garrison, 379 U. S., at 73. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter. Contrast Connick, 461 U. S., at 153 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).

Snyder goes on to argue that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views — in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation’s sinful policies.

*456Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term — “emotional distress” — fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983), “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ '[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474, 480 (1988).4

That said, “[ejven protected speech is not equally permissible in all places and at all times.” Id., at 479 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799 (1985)). Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach — it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18-19, n. 2 *457(listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.5

We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U. S., at 477. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753, 768 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by West-boro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

*458Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government-may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection ... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Out-rageousness,” however, is a highly malleable standard with “an inherent subjeetiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . Vehement, caustic, and sometimes unpleas-an[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

*459For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.

m

The jury also found Westboro liable for the state law torts of intrusion upon seclusion and civil conspiracy. The Court of Appeals did not examine these torts independently of the intentional infliction of emotional distress tort. Instead, the Court of Appeals reversed the District Court wholesale, holding that the judgment wrongly “attache[d] tort liability to constitutionally protected speech.” 580 F. 3d, at 226.

Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral. Brief for Petitioner 45-46. We do not agree. In most circumstances, “the Constitution does not permit the government to decide which types of-otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, . . . the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville, 422 U. S. 205, 210-211 (1975) (internal quotation marks omitted). As a result, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U. S. 15, 21 (1971).

As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept., 397 U. S. 728, 736-738 (1970), and an ordinance prohibiting picketing *460“before or about” any individual’s residence, Frisby, 487 U. S., at 477, 484-485.

Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.

Because we find that the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion — the alleged unlawful activity Westboro conspired to accomplish — we must likewise hold that Snyder cannot recover for civil conspiracy based on those torts.

IV

Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, “the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Florida Star v. B. J. F., 491 U. S. 524, 533 (1989).

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here— *461inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.

It is so ordered.

Justice Breyer,

concurring.

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court's conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern. See Frisby v. Schultz, 487 U. S. 474 (1988). Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (“fighting words”).

The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual. Indeed, the state *462tort of “intentional infliction of emotional distress” forbids only conduct that produces distress “so severe that no reasonable man could be expected to endure it,” and which itself is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Post, at 464 (opinion of Alito, J.) (quoting Harris v. Jones, 281 Md. 560, 567, 571, 380 A. 2d 611, 614, 616 (1977); internal quotation marks omitted). The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress — to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e. g., personal privacy, even in the most horrendous of sueh circumstances?

As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and state-protected (say, privacy-related) interests seriously conflict. Cf. Florida Star v. B. J. F., 491 U. S. 524, 533 (1989); Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984). That review makes clear that West-boro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public *463concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Justice Alito,

dissenting.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived Mm of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

I

Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that *464wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED). Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 53 (1988).

This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo-Torres v. Nickel, 321 Md. 642, 653, 584 A. 2d 69, 75 (1991) (“[RJecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted)); Harris v. Jones, 281 Md. 560, 571, 380 A. 2d 611, 616 (1977) (the distress must be “ ‘so severe that no reasonable man could be expected to endure it’ ” (quoting Restatement (Second) of Torts § 46, Comment j (1963-1964))).

A plaintiff must also establish that the defendant’s conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris, supra, at 567, 380 A. 2d, at 614 (quoting Restatement (Second) of Torts § 46, Comment d).

Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show *465that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F. 3d 206, 216 (CA4 2009). They did not dispute that Mr. Snyder suffered “'wounds that are truly severe and incapable of healing themselves.’ ” Figueiredo-Torres, supra, at 653, 584 A. 2d, at 75. Nor did they dispute that their speech was “'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Harris, supra, at 567, 380 A. 2d, at 614. Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.

II

It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton, [1897] 2 Q. B. 57); see also Restatement (Second) of Torts § 46, Illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.

This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury is intentionally inflicted by *466means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

Ill

In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations. They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country. They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are allowed. (There are more than 4,000,000 miles of public roads in the United States.2) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.3) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.4) But of course, a small group picketing at any of these locations would have probably gone unnoticed.

The Westboro Baptist Church, however, has devised a strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military funerals. Ante, at 448. They have also picketed the funerals of *467police officers,5 firefighters,6 and the victims of natural disasters,7 accidents,8 and shocking crimes.9 And in advance of these protests, they issue press releases to ensure that their protests will attract public attention.10

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson — proclaiming that she was “better off dead”11 — their announcement was national news,12 and the church was able to obtain *468free air time on the radio in exchange for canceling its protest.13 Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman.14

In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor — for a fag nation cursed by God .... Now in Hell — sine die.” Supp. App. in No. 08-1026 (CA4), p. 158a. This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.

On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You” and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins. App. to Brief for Appellants in No. 08-1026 (CA4), pp. 3787, 3788. Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell — sine die.” Id., at 3783.

Even if those who attended the funeral were not alerted in advance about respondents’ intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder’s funeral and not *469at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents’ signs — e.g., “God Hates You,” “Not Blessed Just Cursed,” and “You’re Going to Hell” — would have likely been interpreted as referring to God’s judgment of the deceased.

Other signs would most naturally have been understood as suggesting — falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id., at 3781-3787. Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Id., at 3788.15 Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the *470United States military, the “epic” addressed the Snyder family directly:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD — PERIOD! You did JUST THE OPPOSITE — you raised him for the devil.

“Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanie Catholicism, taught Matthew to be an idolater.

“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?” Id., at 3791.

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures,16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder's purely private conduct does not.

*471Justice Breyer provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:

“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.” Ante, at 461 (concurring opinion).

This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed — and that they will now continue to employ — inflicting severe and lasting emotional injury on an ever growing list of innocent victims.

IV

The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.

First — and most important — the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 454. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefama-tory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge,

*472see ante, at 455, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation— "to increase publicity for its views,” ibid. — did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks — and the Court does not hold otherwise — then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had "the right to be where [he was].” See ante, at 457. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing *473within a specified distance of a funeral. See ante, at 456-457. It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante, at 457, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.

The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See National Archives and Records Admin. v. Favish, 541 U. S. 157, 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their ... grief,” ibid., and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.

V

In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.

First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents’ speech was “'directed specifically at the Snyder family.’” *474580 F. 3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents’ statements targeted the Snyders.

Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents’ speech was so “'offensive and shocking as to not be entitled to First Amendment protection.’” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment, and the only question for the jury was whether the elements of the IIED tort were met.

Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual. See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases — Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46 — but neither supports the broad proposition that the Court of Appeals adopted.

Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort.

Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure. Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U. S., at 56. Unless a caricature of a public figure can reasonably be interpreted *475as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.

Because I cannot agree either with the holding of this Court or the other grounds oh which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings.17

VI

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.

Opinion

HANSON (Thaxton), J.

Introduction

The events giving rise to this action occurred on the night of October 30, 1979, when an NBC television camera crew entered the apartment of Dave and Brownie Miller in Los Angeles, without their consent, to film the activities of Los Angeles Fire Department paramedics called to the Miller home to administer life-saving techniques to Dave Miller, who had suffered a heart attack in his bedroom. The NBC television camera crew not only filmed the paramedics’ attempts to assist Miller, but NBC used the film on its nightly news without obtaining anyone’s consent. In addition, after it had received complaints from both Brownie Miller and her daughter, Marlene Miller Belloni, NBC later used portions of the film in a commercial advertising an NBC “mini-documentary” about the paramedics’ work.

The paramedics were unable to successfully resuscitate Dave Miller; he died that October evening at Mount Sinai Hospital. His widow, Brownie, *1470and daughter, Marlene (hereinafter, sometimes plaintiffs or plaintiff wife and plaintiff daughter), brought suit against defendants National Broadcasting Company (NBC), doing business as KNBC, a Los Angeles television station, Ruben Norte (Norte), a producer employed by NBC, and the City of Los Angeles (City) for damages, alleging trespass, invasion of privacy, and infliction of emotional distress against all defendants. After considerable discovery and amendment of pleadings, the trial court granted defendants’ motion for summary judgment. Plaintiffs appeal. We affirm in part and reverse in part.

Procedural History

On May 29, 1980, plaintiffs filed a “Complaint for Damages: Trespass; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Invasion of Privacy”1 naming NBC, Norte, City’s Fire Department as defendants. Plaintiffs prayed for general and special damages according to proof and punitive damages in the sum of $500,000.

On July 6, 1984, defendants NBC and Norte filed a notice of motion for summary judgment as to plaintiffs’ second, third, fourth, fifth, sixth and seventh causes of action along with points and authorities.

On August 6, 1984, the superior court, after consideration of the moving and opposition papers, deemed defendants’ motion to be a judgment on the pleadings and granted plaintiffs 15 days to amend with the following proviso: “Plaintiff[s] may plead one tort for each broadcast seen by each plaintiff and may plead trespass so long as damages are not based on the broadcast.”

On August 21, 1984, plaintiffs filed a “First Amended Complaint for Damages” which essentially incorporates the allegations of the seven causes *1471of action in the original complaint (see fn. 1, ante) into three causes of action.2

On August 31, 1984, defendants NBC and Norte filed a notice of motion and motion for Judgment on the Pleadings, arguing that the amended complaint did not comply with the court’s order of August 6,1984 by improperly pleading several different tort actions arising out of each television broadcast *1472allegedly viewed by plaintiffs and was in contravention of the Uniform Publications Act section 3425.3.

On September 6, 1984, a mandatory settlement conference was conducted and the matter set for trial on December 4, 1984.

On September 20, 1984, the superior court denied defendants NBC and Norte’s motion to strike the at-issue memorandum and the judgment on the pleadings.

(The record reflects that at this hearing defense counsel requested the trial be continued to allow time to prepare and file a motion for summary judgment and plaintiffs’ counsel waived all time and notice requirements for the motion.)

On September 19,1984, defendant City filed its answer to the first amended complaint, denying the complaint and affirmatively alleging that City’s employees were given actual or implied consent to enter plaintiff Miller’s residence, and that defendant City is immune from liability pursuant to Government Code sections 815.2 and 820.2 and Civil Code section 47.

On October 18, 1984, following extensive discovery including depositions, defendants NBC and Norte filed a “Notice of Motion and Motion for Summary Judgment or, in the alternative, for Summary Adjudication.” The moving papers included points and authorities in support of the motion and a “Statement of Undisputed Facts.”

(The plaintiffs’ “Appendix in Lieu of Clerk’s Transcript on Appeal” does not include copies of exhibits attached to defendants’ motion for summary judgment, consisting of extracts from depositions taken during discovery. Pursuant to rule 12a, California Rules of Court, we have ordered up and reviewed the entire superior court file (No. C-324427), including copies of the portions of depositions referred to by defendants in their moving papers and plaintiffs’ opposition papers.)

On November 6, 1984, plaintiffs filed a “Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment or Summary Adjudication; Statement of Disputed and Undisputed Facts.”

(Plaintiffs’ opposition papers direct the court’s attention to other portions of the depositions referred to by defendants in their moving papers and incorporate deposition testimony of Fire Captain Anthony R. De Domenico of the Los Angeles City Fire Department and Douglas E. Brown, Senior Paramedic for the Bureau of Emergency Medical Service, Los Angeles City *1473Fire Department, along with a copy of “Defendants’ Response to Plaintiffs’ Third Set of Interrogatories.”)

On November 13, 1984, defendants filed “Reply Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment,” asserting that plaintiffs concede 1) “that they have no cause of action based upon the contents of the KNBC broadcast; 2) that they cannot as relatives, maintain an action based upon the KNBC broadcast depicting their relative; 3) and that the consoling telephone calls from friends and neighbors, which they naturally received after Mr. Miller’s death, cannot give rise to an independent cause of action.” (Italics original.)

Defendants further construe plaintiffs’ memorandum in opposition to their motion for summary judgment as asserting that the amended complaint states a claim for an “intrusion,” i.e., “invasion of privacy” by reason of the publicity of their deceased relative which caused emotional harm. Defendants also filed “Defendants’ Response to Plaintiffs’ Assertion of Various Material Facts in their Opposition to Defendants’ Motion for Summary Judgment.”

On November 16, 1984, counsel for all defendants (NBC, Norte and City) and plaintiffs presented oral argument; documentary evidence was introduced and the cause was submitted for decision.

On April 24,1985, the court below, “after full consideration of the moving papers and responding papers, all supporting papers, and oral argument of counsel,” signed and filed its “Judgment by Court and Statement of Decision.”

In ruling in favor of defendants NBC and Norte and against plaintiffs, the court found plaintiffs’ stated causes of action had no merit and presented no triable issues of fact. The court stated:

“1. Plaintiffs Brownie Miller and Marlene Belloni have no actionable claim for invasion of privacy, intentional infliction of emotional distress or negligent infliction of emotional distress based upon their alleged viewing of NBC broadcasts allegedly depicting their (now deceased) relative, Mr. Miller. Flynn v. Higham, 149 Cal.App.3d 677, 683 [197 Cal.Rptr. 145] (1983); Coverstone v. Davies, 38 Cal.2d 315 [239 P.2d 876] (1952); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59 [121 Cal.Rptr. 429] (1975); Grimes v. Carter, 241 Cal.App.2d 694, 702 [50 Cal.Rptr. 808, 19 A.L.R.3d 1310] (1966).

“2. Defendants are entitled to summary judgment of Plaintiff Miller’s cause of action for the alleged trespass by Ruben Norte and other employees *1474of Defendant National Broadcasting Company, Inc. because (1) there is no evidence that Defendants entered Plaintiff Miller’s property maliciously; and (2) Plaintiff Miller suffered no actual damage as a result of the alleged entry.”

On June 20, 1985, the superior court denied plaintiffs’ motion for a new trial.

On July 8, 1985, plaintiffs timely filed their notice of appeal and notice of election to prepare appendix.

On February 3, 1986, by stipulation, the appeal against defendant City was dismissed.

The Scenario

Defendant Norte, an NBC news field producer in charge of new stories and projects, was assigned a minidocumentary on fire department paramedics and their work. The minidocumentary was to run during the five weekdays for two weeks, airing for five minutes at the end of the 6 p.m. news, and about half that time on the 11 p.m. news. The first week concerned the paramedics’ work generally. The second week focused on the administering of CPR by a paramedic team.

Norte, holding a University of Texas degree in Mass Communications, with field newspaper and television experience and five years as field producer for KNBC, commenced background work and research well in advance of the scheduled showing of the minidocumentary. Filming started four to five weeks before airing. In preparation of the documentary, Norte contacted not only the fire departments of the City and County of Los Angeles but also the paramedics in many other cities, including Santa Monica, Sierra Madre, Glendale, Burbank and Seattle.

Norte contacted Tony De Domenico, the Los Angeles City Fire Department medical representative, and discussed the feasibility of having a film crew accompany a unit of paramedics, and was advised that it would be acceptable with the City. (Norte in his deposition testified that he did not discuss with De Domenico or anyone else a requirement of getting permission from any of the persons whose home the film crew would enter.) Norte testified that “My intent was to film and document whatever their work was and whatever it happened to be when we filmed.” He told the paramedics’ media representative, Brown, that he wanted to film something “dramatic.” He personally accompanied his film crew, consisting of a cameraman and a soundman, and between 10 and 15 times entered private residences with *1475the film crew while filming with the paramedics. He testified that about half of the time someone asked what they were doing, that he always responded, and that no one objected. Norte also testified that it was standard practice in the television industry to secure consent before entering someone’s home to film, but that he had not considered the necessity for such permission when accompanying the paramedics on their rounds.3

Turning specifically to the instant case, Norte testified that his crew was with the paramedic unit which was responding to a call that Mr. Miller had suffered an apparent coronary. Before proceeding to the Miller home, the paramedic unit had responded to at least four other calls, including an overdose case and an automobile accident. Norte rode in back of the paramedics’ ambulance with Stan Riley (carrying a film-tape recorder) and John Parson (carrying a camera). When they arrived at the Miller home, all three NBC personnel immediately followed the two paramedics into the apartment and the bedroom, where they filmed the paramedics performing CPR on Dave Miller. At no time did Norte or any other NBC employee seek or obtain consent to follow the paramedic team into the residence. The cameraman and soundman left with the paramedics, who placed the heart attack victim on a gurney and took him to Mount Sinai Hospital, where he subsequently died.

Although Norte later learned that the coronary victim had died, he did not attempt to ascertain the exact location of the filming or the identity of the deceased’s relatives. He did not believe that was necessary, because “there was no identity made of the victim verbally or visually [on film].” Norte, while supervising the editing of the film, did observe a tattoo on the victim’s arm, but it showed for a “couple of frames, couple of seconds” and he stated that he “would be surprised if anybody could identify him from the film that was aired.”

While Norte conceded it was normal procedure to get permission to enter a house, because of the emergency situation “there was no one to ask.”4

Norte testified that to his knowledge the only time the footage was shown containing this heart attack victim was on the 6 p.m. news on November 19 and a shorter (cut down) version on the 11 p.m. news. He was not aware *1476that some footage was used as a lead commercial for the following week’s series on CPR.

Norte received a telephone call on November 19 after the 6 p.m. news from a woman who said she thought the person in the film was her father, who had passed away recently. Norte told her he was sorry to hear her father passed away. Following the telephone call, he did nothing to ascertain the identity of the victim, but did review the film footage and concluded that it did not show enough of the person that he could be identified.

Plaintiff wife’s deposition was taken under oath on September 22, 1983, and she testified substantially as follows: that on October 30, 1979, she and her husband Dave Miller resided in apartment.3, 8211 Blackburn; that at about 10 p.m. on that date, Dave Miller collapsed onto the bedroom floor; and that she screamed and a neighbor came and called the paramedics. Although aware that the paramedics arrived and were administering CPR to her husband, she was completely unaware that the NBC filming unit had arrived and left with them. A police officer who had arrived escorted her to another room while the paramedics were working on her husband. She at no time asked anyone to leave the apartment and no one asked her permission to film the paramedics.

Plaintiff Miller saw the film of her husband and the paramedics weeks after his death; at 10:30 a.m., while she was “flipping” channels looking for a “soap opera” to watch, suddenly the film was shown. She screamed and turned the television off. That was the only time she saw the film.

Plaintiff Miller also received telephone calls from friends who had seen the sequence; the calls upset her. She called Norte only once and said: “What nerve did you have to come into my home and invade my privacy and do the things that you did to disturb my whole household.” Norte’s answer was, “I am sorry. I am very sorry.” She “told him what nerve he had to come in and to do what he did. He was—my husband was a very private person. He would never have liked anything like that to have been on television.” Norte’s answer was, “I’m sorry. I’m very sorry.”

Plaintiff daughter, whose deposition was taken under oath on May 24, 1983, lived in Laguna Beach, quite some distance away from her parents’ home. Plaintiff daughter was not present when the paramedics and the NBC film crew went to the Miller home.

Plaintiff daughter was watching the 6 p.m. news on channel 4 on November 19. She “saw [the paramedics] going up a flight of stairs, and ‘realized when they went in the doorway—[her] mother had these pictures *1477on the wall,’” and realized that it was her mother’s apartment. She screamed for her husband [Mr. Belloni] to come in the room. She “was [then] out of the room for a couple of minutes until she thought it was over. ” Before [she] ran out of the room she observed everybody hovering over the heart attack victim and “saw a mask coming down.” When she returned to the room, she saw that “they were wheeling him out.” She knew it was her father because of a distinctive tattoo on the arm of the man being wheeled out.

Plaintiff daughter telephoned defendant Norte and told him she had viewed the telecast, was very upset, and that he was cruel in not getting permission to do it and not contacting them so a choice could be made to watch it or not. She testified that Norte said that he did not know how to get ahold of them, or “I didn’t know. I didn’t think of it.” She asked Norte not to show it again and he said that it was part of their whole week’s special but that he would look into not doing it. She testified that although she did not view the 11 p.m. news, her husband did and it was aired again.

She then called Norte again, “to tell him again how upset [she] was and to ask him not to show it.”

After talking to Norte the second time, she stated: “I called all of our immediate relatives that I thought might be watching the late news to make them aware not to watch it or if they did watch it, it was their choice not to be frightened, scared.” Only one had seen the documentary.

She also called her mother and told her “not to watch the news because her father was in it; that she had called Norte but didn’t know for sure if it was going to be on, but not to take the chance and watch it.” To her knowledge, her mother did not view the 11 p.m. newscast.

Plaintiff daughter subsequently saw one showing of a portion of the documentary involving her father for promotional purposes. But four or five close friends, who had been advised to keep track of promotional showings on advice of plaintiff’s counsel, had seen several other promotional spots.

As a result of seeing the newscast, she experienced what she called an “anxiety attack” in which she would cry, become emotional, and angry. She was very emotional due to her father’s death but after the telecast of the paramedics at work on her father, her emotional state changed to anger. When asked to verbalize why observing the short portion of the segment she saw made it difficult for her to deal with the situation any more than the fact of her father’s death alone, she stated that she had been told that when he had the heart attack he died right away, and that the telecast indicated that he was “brought back” several times before he died and she did not *1478like “to think that he may have experienced some of that [pain], [she] would hate to think that of him.”

Standard of Review

The rules applicable to an appellate review of a summary judgment granted by the trial court are well settled.

Code of Civil Procedure section 437c provides that any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto: “(b) The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. . . . [1Í]. . . The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken. The opposition papers shall include a separate statement which responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts which the opposing party contends are disputed. . . . (c) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Italics added.)

Under summary judgment procedure, since defendants NBC and Norte were the moving parties, they had to conclusively negate a necessary element of each of plaintiffs’ causes of action or establish a complete defense, and thereby demonstrate that under no hypothesis was there a material factual issue which required the process of a trial. (See Tresemer v. Barke (1978) 86 Cal.App.3d 656, 661-662 [150 Cal.Rptr. 384, 12 A.L.R.4th 27].) “The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.” (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851 [94 Cal.Rptr. 785, 484 P.2d 953].) The court is “limited to the facts shown in the affidavits and those admitted and uncontested in the pleadings.” (Levin v. State of California (1983) 146 Cal.App.3d 410, 414 [194 Cal.Rptr. 223].)

However, “[t]he trial court must grant a motion for summary judgment if ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter *1479of law.’ (Code Civ. Proc., § 437c.)” (Italics added.) (McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 82 [150 Cal.Rptr. 730].) This is so, even though justice is generally better served when cases are heard on their merits.

Matters involving First Amendment rights, however, are subject to a somewhat different standard of review than those dealing with other areas of the law. Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 684-685 [150 Cal.Rptr. 258, 586 P.2d 572], cert. den. Good Government Group of Seal Beach, Inc., et al. v. Hogard (1979) 441 U.S. 961 [60 L.Ed.2d 1066, 99 S.Ct. 2405] (a writ proceeding) stated that “ [defendants are correct in asserting that, because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy, and upon such a motion the trial court must determine whether there is a sufficient showing of malice to warrant submission of that issue to the jury. [Citations.]”

In Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1046 [201 Cal.Rptr. 665], the Court of Appeal noted that “it also bears emphasis that a motion for summary judgment in First Amendment cases is an approved procedure because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights and because speedy resolution of cases involving free speech is desirable [citations]. While the crucial test as to whether to grant a motion for summary judgment remains the same in free speech cases (i.e., whether there is a triable issue of fact presented in the case), the courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing the courts are inclined to grant the motion and do not permit the case to proceed beyond the summary judgment stage [citations].”

In the case at bench, the parties themselves facilitated the summary judgment proceedings because the case is one in which the issues are legal questions arising from facts about which there is no basic dispute. As with demurrer procedure on occasion, the issues here are whether plaintiffs have stated causes of action against the defendants. If they have, there are numerous triable issues of fact; if they have not, there are none. We note also that the designation of the complaint as well as the form in which the complaint is drawn is immaterial in determining what causes of action, if any, are stated by the facts as pleaded. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 367, p. 420.)

*1480Mindful of the standard of review in First Amendment matters, we address the questions of law which have been presented on this appeal.

Issues

In addition to identification of causes of action, a principle issue in this litigation is the extent to which the First Amendment to the United States Constitution and article I, section 2 of the California Constitution (hereinafter collectively referred to as First Amendment rights, on occasion) protect newsgathering of this kind from civil liability.

Discussion

I.

Trespass: Plaintiff Wife’s First Cause of Action

Plaintiff wife has alleged, and it is undisputed, that defendants made an unauthorized entry into her apartment on October 30, 1979. Common law defined such entry as a trespass. “The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another. Such invasions are characterized as intentional torts, regardless of the actor’s motivation. Where there is a consensual entry, there is no tort, because lack of consent is an element of the [theory underlying the tort]. ‘A peaceable entry on land by consent is not actionable.’ (4 Witkin, Summary of Cal. Law (8th ed. 1974) § 351, p. 2612.)” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16-17 [135 Cal.Rptr. 915].)

The trial court awarded summary judgment to defendants on this cause of action “because (1) there is no evidence that Defendants entered Plaintiff Miller’s property maliciously; and (2) Plaintiff Miller suffered no actual damage as a result of the alleged entry.” (Italics added.)

The trial court’s ruling concerning the “trespass” was based on the notion that it was “technical” in nature due to the lack of specific malice directed against the Millers by the NBC camera crew. The trial court ignored the fact that the trespass was intentional in the sense that the law understands and uses that word: the defendants intended to cross the threshold of the Miller home. Thus, they committed an intentional tort, which rendered the actors’ more refined motivation or intentions immaterial in terms of establishing that commission. As Prosser and Keeton on Torts (5th ed. 1984) section 13, pages 73-74 explained, “[t]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred. . . . The defendant is liable for an *1481intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.”

With respect to damages, Prosser and Keeton observe, at pages 76-77, that “[i]t would appear that the defendant trespasser will be liable for all direct consequences of any conduct engaged in while trespassing. Quite frequently, however, the defendant has been held liable for indirect consequences, some of which have not been reasonably foreseeable, of conduct engaged in while trespassing. [Fn. omitted.] It is important to realize that those who use another’s land without permission may justifiably have ‘risks of losses’ allocated to them far beyond those normally imposed when liability is imposed on a negligence theory.”

Under California law, the “consequences” flowing from an intentional tort such as a trespass may include emotional distress either accompanied by a physical injury to the person or to the land. (See, e.g., Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337-338 [5 Cal.Rptr. 686, 353 P.2d 294].) The basic statutory provision concerning tort damages reflects this view, in providing that “[f]or the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code, § 3333.) In the case at bench, the “consequences” would include plaintiff wife’s anguish, i.e., her emotional distress when NBC broadcast her husband’s dying moments.

Thus, pursuant to common law principles accepted in California law, plaintiff wife has stated a cause of action for trespass unless First Amendment rights preclude it. (See discussion, post.)

II.

Invasion of Privacy—Plaintiff Wife’s Second Cause of Action

Plaintiff wife has alleged in her complaint a trespass which also constituted the tort of intrusion, one of a group of torts which comprise privacy invasion.

The right of privacy has been described as “independent of the common rights of property, contract, reputation and physical integrity, . . . ‘the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In short it is the right to be let alone.’” (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 276 [239 P.2d 630].) Since the “right to be let alone” can be violated in contexts immensely diverse *1482in consequences and degree, the common law which recognized the right did not easily lend itself to analysis.

An early Harvard Law Review article (1890)5 deplored the activities of the press in reporting about society functions; some early state statutes tried to prevent entrepreneurs from exploiting an individual to sell their products. (California’s statute is Civ. Code, § 3344.)

In 1960, however, Dean W. L. Prosser categorized and defined four basic privacy interests in a classic article entitled Privacy which appeared in 48 Cal. L. R. 383, 389.

He described those interests as follows:

“ 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

“2. Public disclosure of embarrassing private facts about the plaintiff.

“3. Publicity which places the plaintiff in a false light in the public eye.

“4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”

Prosser stated that “[i]t should be obvious at once that these four types of invasion may be subject, in some respects at least, to different rules; and that when what is said as to any one of them is carried over to another, it may not be at all applicable, and confusion may follow. ” The Prosser analysis has been widely adopted; the Restatement Second of Torts uses it to explain and distinguish the legal principles in this area of the law. Recent California decisions have also employed it. (See, e.g., Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118 [188 Cal.Rptr. 762].)

The case at bench involves the first category of privacy rights, the right to be secure from intrusion. Restatement Second of Torts, section 652B declares that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. ” (Italics added.)

As the Restatement definition indicates, the right to be secure from intrusion is not absolute, but instead is subject to an important limitation. *1483The unintended or mistaken foray into the territory of another does not give rise to liability, nor would damages be awarded for minor incidents of overstepping, which abound in a crowded world.

While what is “highly offensive to a reasonable person” suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of “offensiveness” which must be made by the court in discerning the existence of a cause of action for intrusion.

There is little California case law based upon facts showing actual physical intrusion to assist us in making this determination, probably because even today most individuals not acting in some clearly identified official capacity do not go into private homes without the consent of those living there;6 not only do widely held notions of decency preclude it, but most individuals understand that to do so is either a tort, a crime, or both.7

It would seem, however, that degree remains an important factor to be considered in determining “offensiveness”; a “party-crasher” might not, under some circumstances, be regarded as a major tortfeasor, while an intruder upon highly personal, intimate activities or events might very well be. One of the early cases in this country, for example, awarded damages against a person who intruded into a place where a woman was giving birth to a child (De May v. Roberts (1881) 46 Mich. 160 [9 N.W. 146]). That was considered “highly offensive.” There are other areas involving intimate conduct where intrusion would be regarded as actionable at law. A court determining the existence of “offensiveness” would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion *1484as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.

The matter before us does not involve the death of a statesman nor of a person who was in any way a public figure; that is not in dispute. The case law involving public figures, celebrities and those who invite attention to themselves is not persuasive here, although even as famous a figure as the widow of an American President has been afforded privacy protection from egregious intrusion. (Galella v. Onassis (1972) 353 F.Supp. 196 (S.D.N.Y.); Galella v. Onassis (2d Cir. 1973) 487 F.2d 986.) Here, reasonable people could construe the lack of restraint and sensitivity NBC producer Norte and his crew displayed as a cavalier disregard for ordinary citizens’ rights of privacy, or, as an indication that they considered such rights of no particular importance.

In our view, reasonable people could regard the NBC camera crew’s intrusion into Dave Miller’s bedroom at a time of vulnerability and confusion occasioned by his seizure as “highly offensive” conduct, thus meeting the limitation on a privacy cause of action Restatement of Torts, section 652B imposes.

Plaintiff wife has stated a cause of action for breach of privacy, and is entitled to a jury’s determination on the cause, unless other rules recognizing public policy limitations or paramount constitutional privileges of the defendants preclude it.

The plaintiff wife’s recovery of damages for intrusion involves different rules but the result is the same. In Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245,247, the Ninth Circuit observed that “ [d] espite some variations in the description and the labels applied to the tort [of invasion of privacy], there is agreement that publication is not a necessary element of the tort, that the existence of a technical trespass is immaterial, and that proof of special damages is not required.”

Damages recoverable in California for invasion of a privacy right were discussed in detail in Fairfield v. American Photocopy etc. Co. (1955) 138 Cal.App.2d 82 [291 P.2d 194]. The Court of Appeal declared that because the interest involved privacy, the damages flowing from its invasion logically would include an award for mental suffering and anguish. Fairfield was an appropriation case, but the principles it laid down concerning damage awards in privacy cases relied on a body of California law which had already recognized violation of the right of privacy as a tort.

The court also referred to opinions of other jurisdictions, however. “‘The gravamen of the action here charged is the injury to the feelings of the *1485plaintiff, the mental anguish and distress caused by the publication. In an action of this character, special damages need not be charged or proven, and if the proof discloses a wrongful invasion of the right of privacy, substantial damages for mental anguish alone may be recovered. [Citations.]’” {Id., at p. 89.)

Fairfield also approved the rule that ‘“One whose right of privacy is unlawfully invaded is entitled to recover substantial damages, although the only damages suffered by him resulted from mental anguish.’” {Id., at p. 89.)

The elements of emotional distress damages, i.e., anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc., would thus be subjects of legitimate inquiry by a jury in the action before us, taking into account all of the consequences and events which flowed from the actionable wrong.

The trial court, in awarding summary judgment to defendants on plaintiff wife’s causes of action for privacy invasion and the intentional infliction of emotional distress, mistakenly relied on Flynn v. Higham (1983) 149 Cal.App.3d 677 [197 Cal.Rptr. 145] (petn. den., S.Ct., Feb. 15, 1984).

In Flynn, this court held that the purely personal right of privacy dies with the person. The Flynn complaint alleged that the defendants (author and publisher of “Errol Flynn—The Untold Story”) defamed plaintiffs (children of the deceased, Errol Flynn) by writing that their father was a homosexual and a Nazi spy.

In affirming the order of dismissal after defendants’ demurrer was sustained and the plaintiffs failed to amend their complaint, Flynn v. Higham, supra, 149 Cal.App.3d 677, 683, quoted the following discussion: ‘“It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded. [Citations.] Further, the right does not survive but dies with the person. [11] It is clear that the publication must contain some direct reference to the plaintiff. The publication must invade the plaintiff’s privacy. Where the publication was directed at another individual and referred incidentally to the plaintiff but was not directed at him, no recovery can be had. Where the plaintiff’s only relation to the asserted wrong is that he is a relative of the victim of the wrongdoer and was unwillingly brought into the limelight, no recovery can be had.’ (Italics in original.) (Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62 [121 Cal.Rptr. 429].)”

*1486The California cases are legion which support the result reached in Flynn.8 The rationale has been stated well in Nelson v. Times (1977) 373 A.2d 1221, at p. 1225: “In the context of this particular tort [invasion of privacy] [many] courts, being wary of spurious claims or those purely emotional in character have refused to recognize such actions. Additionally, if actions for violating the right of privacy were allowed by other than the person directly involved, fixing their boundaries and parameters would become an almost impossible task. For example, within what degree of relationship, if any, must a prospective plaintiff be? Might not a very close friend have as serious an emotional reaction as a mother or father? The consensus seems to be that limiting the action to the person directly involved is a sounder judicial policy. [Citations.]”

In the instant case, the NBC camera crew, the uninvited media guests, not only invaded the Millers’ bedroom without Dave Miller’s consent, they also invaded the home and privacy of his plaintiff wife, Brownie Miller, referred to by Norte in his deposition as “a woman in the hallway.” Not only was the “woman in the hallway” Dave Miller’s wife, the hallway was a part of her home, a place where NBC had no right to be without her consent.

In the context of Fourth Amendment search and seizure law as applied in a criminal case, the California Supreme Court has observed that former case law had reflected “the now defunct community property principle that management and control of real and personal property are vested in the husband. (Former Civ. Code, §§ 162a, 172a, repealed by Stats. 1969, ch. 1608, § 3, p. 3313). Under present law a wife possesses independent and coequal authority to consent to a search of commonly occupied areas. (See Civ. Code, § 5105.)” (People v. Haskett (1982) 30 Cal.3d 841, 857, fn. 5 [180 Cal.Rptr. 640, 640 P.2d 776].) This view does not merely result from *1487recent changes in women’s status; an early case, Young v. Western & A. R. Co. (1929) 39 Ga.App. 761 [148 S.E. 414], held that a wife was also injured by a trespass onto property of her husband and herself.

Thus, the defendants’ invasion of plaintiff wife’s rights was direct and personal to her; therefore, it is also consistent with Vescovo v. New Way Enterprises, Ltd. (1976) 60 Cal.App.3d 582 [130 Cal.Rptr. 86], where it was held that the 14-year-old daughter residing in the house had a recognizable privacy interest to be free of intrusion there.

III.

Plaintiff Wife’s Cause of Action for the Intentional Infliction of Emotional Distress

Plaintiff wife seeks redress for the intentional infliction of emotional distress by defendants. “The elements of a prima facie case for the tort of intentional infliction of emotional distress were summarized in Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593 [156 Cal.Rptr. 198, 595 P.2d 975] [citation], as follows: ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard [for] the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. ’ ” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894].)

Just as defining the parameters of the right of privacy from intrusion requires a reviewing court to make a preliminary determination, the tort of intentional infliction of emotional distress requires the same process of definition; in this instance, it requires consideration of what constitutes “extreme and outrageous conduct.” We approach the problem by employing the abstract but useful standard of how reasonable people might view such conduct, excluding from that category those either overly sensitive or callous.

The key to analysis of the facts before us was the trespass committed by the NBC camera crew in crossing the threshold of a private residence without, apparently, even a moment’s hesitation. The record contains no evidence that crew members, including the producer, Norte, had any specific malicious or evil purpose. Here, the record discloses that the NBC camera crew apparently devoted little or no thought whatsoever to its obvious transgression.

*1488“Little or no thought” constitutes, in this context, “reckless disregard” of the rights and sensitivities of others. We are not unmindful of Norte’s testimony that before invading the Miller house, he and the camera crew had done the same thing at other private places without any negative expression from those invaded. This conduct does not establish the complaint in this case as that of overly sensitive people. It illustrates, perhaps, a widespread loss of certainty about where public concerns end and private life begins, and a loss of personal identity manifested by individual members of the public when confronted by aggressive media representatives. Personal security in a society saturated daily with publicity about its members requires protection not only from governmental intrusion, but some basic bulwark of defense against private commercial enterprises which derive profits from gathering and disseminating information.

With respect to plaintiff wife’s cause of action, we leave it to a reasonable jury whether the defendants’ conduct was “outrageous.” Not only was her home invaded without her consent, but the last moments of her dying husband’s life were filmed and broadcast to the world without any regard for the subsequent protestations of both plaintiffs to the defendants. Again, the defendants’ lack of response to these protestations suggests an alarming absence of sensitivity and civility. The record reflects that defendants appeared to imagine that they could show or not show Dave Miller in extremis at their pleasure, and with impunity.

So it was that plaintiff wife, weeks after the event, was watching her television set on a Wednesday morning and saw an intensely private event, meaningful only to her and a few others in a personal way, as filmed by an NBC crew who had no right to be where they were when they filmed it. It is immaterial that in defendants’ judgment (expressed by Norte in his deposition testimony) that upon review of the film in question, the body of Dave Miller was not identifiable by the average viewer. Plaintiff wife was not an average viewer, a member of the general viewing public; the film depicted her house and her husband, and that fact was known to her.

She has stated a cause of action for the intentional infliction of emotional distress unless precluded by the defense of First Amendment privilege. (See “Constitutional Rights,” post, p. 1489.)

IV.

Plaintiff Daughter’s Causes of Action

We hold, however, that plaintiff daughter has stated neither a cause of action for intrusion of her right of privacy nor for the intentional infliction of emotional distress.

*1489With respect to her asserted privacy invasion, she was not present when the invasion of her parents’ household occurred nor did those premises belong to her. By way of contrast, the right of privacy upheld in Vescovo, supra, 60 Cal. App.3d 582 was based on facts showing the direct and personal intrusions into a teenaged daughter’s household caused by the defendant.

In the case at bench, the daughter’s claims of injury fall within the policy limitation of Flynn v. Higham, supra, 149 Cal.App.3d 677, because the principal thrust of the daughter’s claims were due to her relationship to the victims of the defendants—her parents—rather than the defendants’ conduct toward her.

Plaintiff daughter argues on this appeal that the broadcasts of her father’s dying moments into her home in and of themselves constituted “photographic intrusions” as to her, coming within the ambit of invasion of privacy by intrusion. We do not hold that such intrusion could not conceivably occur, but delineation of a tort of this nature must await more appropriate circumstances. Flynn precludes claims by relatives of victims wronged by publicity as a matter of sound policy. It precludes her action here.

The Flynn rationale is equally applicable to plaintiff daughter’s cause of action for the intentional infliction of emotional distress; the same consideration, that of placing a reasonable limitation on liability, governs this claim as well. There are relatively few successful prosecutions of this tort because, by its very definition, the law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant. We need not address with particularity the proximate cause problem raised by television broadcasting, since plaintiff daughter’s claim is not based in the first instance on conduct sufficiently egregious with respect to her.

V.

Constitutional Rights

Defendants have vigorously defended against liability in the instant case, relying, in addition to Flynn, on two propositions: (1) that by calling for the paramedics, the Millers impliedly consented to the entry of the NBC camera crew and (2) plaintiff wife’s cause of action was precluded by NBC’s constitutionally recognized and protected First Amendment right to gather news.

The first proposition is devoid of merit. One seeking emergency medical attention does not thereby “open the door” for persons without *1490any clearly identifiable and justifiable official reason who may wish to enter the premises where the medical aid is being administered. In Dietemann v. Time, Inc., supra, 449 F.2d 245, the court held that newsgatherers cannot immunize their conduct by purporting to act jointly with public officials such as the police or paramedics. The clear line of demarcation between the public interest served by public officials and that served by private business must not be obscured.

The second argument, however, merits discussion. As a preliminary matter, we note that conceptually speaking, as noted First Amendment scholar Melville R. Nimmer has stated, with respect to the Prosser categories of privacy rights, both “intrusion” and “appropriation” may be “put to one side .... Intrusion does not raise first amendment difficulties since its perpetration does not involve speech or other expression. It occurs by virtue of the physical or mechanical observation of the private affairs of another, and not by the publication of such observations. The appropriation form of privacy invasion probably also does not raise first amendment problems, although here speech and other expression is involved. ” (Nimmer, The Right to Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56 Cal. L.Rev. 935, 957.)

We will, however, explore defendants’ contention, since the events upon which this litigation was based involved both “physical observation of the private affairs of another” and the filming and dissemination of the physical observation.

Defendants are not alone in enjoying some constitutional protection for their pursuits. Individual ordinary citizens also enjoy certain protections, one of which is to be left alone in their own homes except under carefully prescribed circumstances. As Galella v. Onassis, supra, 353 F.Supp. 196, observed, the individual’s right to be let alone permeates the federal Constitution in a number of different ways. “The Constitution itself creates a right of privacy. The First Amendment protects the right of freedom of association. The Fourth Amendment protects the individual from unreasonable searches and seizures. The Fifth Amendment and its privilege against self-incrimination safeguards the individual in a zone of privacy into which the Government may not intrude, and the Ninth Amendment provides that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” (Id., at p. 231.)

In California, the voters enacted, on November 5, 1974, article I, section 1 of the California Constitution, which provides that “[ajll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting *1491property, and pursuing and obtaining safety, happiness, and privacy. ” (Italics added.) The voters were actually reenacting a provision that had long been a part of the California Constitution’s declaration of rights. As early as 1931, Melvin v. Reid (1931) 112 Cal.App. 285,291 [297 P. 91] recognized California’s dedication to privacy rights. The 1974 enactment expressly added “privacy” to the California Constitution.

As White v. Davis (1975) 13 Cal.3d 757, 775 [120 Cal.Rptr. 94, 533 P.2d 222] explained, the 1974 amendment which was approved by the voters was presented to voters as a necessary protection against some perceived “mischiefs,” including “(1) ‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.”

White v. Davis held that the amendment was “intended to be self-executing, i.e., that the constitutional provision, in itself, ‘creates a legal and enforceable right of privacy for every Californian.’” (Id., at p. 775.) While primarily aimed at unreasonable intrusion by governmental and business interests into people’s private affairs, the California Supreme Court recently stated that despite this emphasis on the scope of the constitutional right of privacy, “the right to privacy has been held to protect a diverse range of personal freedoms. [Citations'.]” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [211 Cal.Rptr. 398, 695 P.2d 695].) We are of the view that it encompasses the rights of plaintiff wife in the present case, both those personal and those of property.

We assume, for the purpose of discussion here, that public education about paramedics, as well as about the use of cardio-pulmonary resuscitation (CPR) as a life-saving technique almost anyone might either need or be called upon to administer to another, qualifies as “news.”

The First Amendment of the United States Constitution declares that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” The protection afforded the disseminators of the news, be they reporters, broadcasters or television newspersons, has been perceived throughout our history as of the utmost importance in maintaining a free society. The protection extends not only to prohibit direct state action, but must be considered when any private citizen seeks to impose civil liability for invasion of privacy by the press or media through access to state courts. *1492 (New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412].)

Newsgathering, as well as news dissemination, may be within the protective ambit of the First Amendment. Branzburg v. Hayes (1972) 408 U.S. 665,681 [33 L.Ed.2d 626,639,92 S.Ct. 2646], observed that “without some protection for seeking out the news, freedom of the press could be eviscerated.” A series of United States Supreme Court decisions have upheld the right of the press and media to publish information contained in public records or obtained during public proceedings, as part of the public’s right to know. (See, e.g., Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [43 L.Ed.2d 328,95 S.Ct. 1029].) California, on First Amendment grounds, has extended the right to gather news without the burden of civil liability to certain heretofore “confidential” proceedings involving assessment of the qualifications of judicial candidates. (Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509 [223 Cal.Rptr. 58].)

Where the United States Supreme Court has addressed the problem of providing adequate constitutional protection for newsgathering, however, it has been careful to point out that the protection is limited, rather than absolute. Branzburg, for example, cited with approval the statement that “‘[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.’ Associated Press v. NLRB, 301 U.S. 103, 132-133 (1937).” (Branzburg v. Hayes, supra, 408 U.S. 665, 683 [33 L.Ed.2d 626, 640].) Implicit in Cox and other decisions upholding newsgatherers’ access to public records assumed that the newsgathering activity was lawful, rather than unlawful. Nicholson notes that the protection extended for newsgathering does not mandate “that the press and its representatives are immune from liability for crimes and torts committed in news gathering activities simply because the ultimate goal is to obtain publishable material. ...” (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d 509, 518.)

The same observation was made in Dietemann v. Time, Inc., supra, 449 F.2d 245 , 249, in the following particularly appropriate language: “We agree that newsgathering is an integral part of news dissemination . . . [but] [t]he First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office. [Fn. omitted.]” (Italics added.)

We conclude, in the case before us, that the obligation not to make unauthorized entry into the private premises of individuals like the Millers *1493does not place an impermissible burden on newsgatherers, nor is it likely to have a chilling effect on the exercise of First Amendment rights. To hold otherwise might have extraordinarily chilling implications for all of us; instead of a zone of privacy protecting our secluded moments, a climate of fear might surround us instead. Others besides the media have rights, and those rights prevail when they are considered in the context of the events at the Miller home on October 30, 1979.

In summary, we hold that plaintiff wife, Brownie Miller, has stated three causes of action against defendants and that since there are triable issues of material fact, the trial court erred in awarding summary judgment to defendants as to plaintiff wife, Brownie Miller. The trial court’s award of summary judgment to defendants on those causes of action pleaded by plaintiff daughter Marlene Miller Belloni was correct and is hereby affirmed.

Disposition

The judgment as to plaintiff Miller’s causes of action is reversed, The judgment as to plaintiff Belloni’s cause of action is affirmed. Plaintiff Miller is to recover her costs.

Spencer, P. J., and Ruiz, J.,* concurred.

Petitions for a rehearing were denied January 12, 1987, and the petitions of appellant Belloni and respondents for review by the Supreme Court were denied March 11, 1987.

Munson, J.

It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant’s servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that to save these from destruction or injury the plaintiff was compelled to, and did, moor the sloop to defendant’s dock; that the defendant by his servant unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff’s fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and *474his wife and children cast into the lake and upon the shore, receiving injuries.

This claim is set forth in two counts; one in trespass, charging that the defendant by his servant with force and arms wilfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine.

In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that as soon as the sheep were off his land he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground. But the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that as the defendant had done his best to recall the dog trespass would not lie.

In trespass of cattle taken in A, defendant pleaded that he was seized of C, and found the cattle there damage feasant, and chased them toward the pound, and that they escaped from him and went into A, and he presently retook them; and this was held a good plea. 21 Bdw. IV. 64; Vin. Ab. Trespass, H. a 4 pi. 19. If one have a way over the land, of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a. pl. 1.

A traveller on a highway, who finds it obstructed from a sudden and temporary cause, may pass upon the adjoining land *475without becoming a trespasser, because of the necessity. Henn’s Case, W. Jones 296; Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811.

An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a. 4, pl. 24, K. a. pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff’s beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore and was in danger of being carried off by the sea; and it was held no trespass. See also Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse’s Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff’s casket and its contents. It appeared that the ferryman of Gravesend took forty-seven passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff’s casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff’s casket out of the barge; that if the ferryman surcharge the barge the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss, to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff *476could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant’s dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insists that the counts are defective in that they fail to show that the servant, in casting off the rope, was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act; and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words “wilfully and designedly” in one count, and “negligently, carelessly and wrongfully” in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment.13 Ency. Pl. & Pr. 922; Voegeli v. Pickel Marble etc. Co., 49 Mo. App. 643; Wabash, Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See also Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

Judgment affirmed and cause remanded.

O’BRIEN, J.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs’ dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Peynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was con*458stantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to leave permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury indicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

*460Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the tailing of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J.

(dissenting).

I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents’ dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

*461In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with lewis, J.

Ervin, J.

Each defendant assigns as error the disallowance of its motion for a compulsory nonsuit. We consider these assignments of error separately because the defendants urge different reasons to sustain their respective positions.

The High Penn Oil Company contends that the evidence is not sufficient to establish either an actionable or an abatable private nuisance. This contention rests on a twofold argument somewhat alternative in character. The High Penn Oil Company asserts primarily that private nuisances are classified as nuisances per se or at law, and nuisances per accidens or in fact; that when one carries on an oil refinery upon premises in his rightful occupation, he conducts a lawful enterprise, and for that reason does not maintain a nuisance per se or at law; that in such case the oil refinery can constitute a nuisance per accidens or in fact to the owner of neighboring land if, and only if, it is constructed or operated in a negligent manner; that there was no testimony at the trial tending to show that the oil refinery was constructed or operated in a negligent manner; and that consequently the evidence does not suffice to establish the existence of either an actionable or an abatable private nuisance. The High Penn Oil Company insists secondarily that the plaintiffs in a civil action can recover only on the case presented by their complaint; that the complaint in the instant action states a cause of action based solely on negligence; that there was no testimony at the trial indicating that the oil refinery was constructed or operated in a negligent manner; and that consequently the evidence is not sufficient to warrant the relief sought and obtained by the plaintiffs, even though it may be ample to establish a nuisance.

*191. The case on appeal discloses some substantial reasons for contesting .the soundness of tbe thesis of the High Penn Oil Company that there was no testimony at the trial tending to show that the oil refinery was constructed or operated in a negligent manner. Even expert witnesses for the defendants testified in substance on cross-examination that the oil refinery would not emit gases or odors in annoying quantities if it were “operated properly.” We would be compelled, however, to reject the argument of the High Penn Oil Company on the present aspect of the appeal even if we should accept at face value its thesis that there was no testimony at the trial tending to show that the oil refinery was constructed or operated in a negligent manner.

The High Penn Oil Company asserts with complete correctness that private nuisances may he classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. 39 Am. Jur., Nuisances, section 11; 66 C.J.S., Nuisances, section 3. Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated. Swinson v. Realty Co,, 200 N.C. 276, 156 S.E. 545; Cherry v. Williams, 147 N.C. 452, 61 S.E. 267, 125 Am. S. E. 566, 15 Ann. Gas. 715; Dargan v. Waddill, 31 N.C. 244, 49 Am. D. 421. The High Penn Oil Company also asserts with complete correctness that an oil refinery is a lawful enterprise and for that reason cannot be a nuisance per se or at law. Waier v. Peerless Oil Co., 265 Mich. 398, 251 N.W. 552; Midland Empire Packing Co. v. Yale Oil Corp. of S. D., 119 Mont. 36, 169 P. 2d 732; Purcell v. Davis, 100 Mont. 480, 50 P. 2d 255. The High Penn Oil Company falls into error, however, when it takes the position that an oil refinery cannot become a nuisance per accidens or in fact unless it is constructed or operated in a negligent manner.

Negligence and nuisance are distinct fields of tort liability. 39 Am. Jur., Nuisances, section 4. While the same act or omission may constitute negligence and also give rise to a private nuisance per accidens or in fact, and thus the two torts may coexist and be practically inseparable, a private nuisance per accidens or in fact may be created or maintained without negligence. Butler v. Light Co., 218 N.C. 116, 10 S.E. 2d 603; Swinson v. Realty Co., supra; 39 Am. Jur., Nuisances, section 24; 65 C.J.S., Negligence, section 1; 66 C.J.S., Nuisances, section 11. Most private nuisances per accidens or in fact are intentionally created or maintained, and are redressed by the courts without allegation or proof of negligence. Godfrey v. Power Co., 190 N.C. 24, 128 S.E. 485; Moran v. Pittsburgh-Des Moines Steel Co., 166 F. 2d 908; King v. Columbian Carbon Co., 152 F. 2d 636; E. Rauh & Sons Fertilizer Co. v. Shreffler, *192139 F. 2d 38; Actiesselskabet Ingrid v. Central R. Co., 216 F. 72, L.R.A. 1916B, 716; Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So. 2d 727; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So. 2d 162; Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 1087; Curtis v. Kastner, 220 Cal. 185, 30 P. 2d 26; Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833; Swift & Co. v. Peoples Coal & Oil Co., 121 Conn. 579, 186 A. 629; Cunningham v. Wilmington Ice Mfg. Co. (Del. Super.), 2 W. W. Hair. 229, 121 A. 654; Dilucchio v. Shaw (Del. Super.), 1 W. W. Harr. 509, 115 A. 771; District of Columbia v. Totten, 55 App. D. C. 312, 5 F. 2d 374, certiorari denied 269 U.S. 562, 46 S. Ct. 21, 70 L. Ed. 412; Pitner v. Shugart Bros., 150 Ga. 340, 103 S.E. 791, 11 A.L.R. 1399; Laflin, & R. Powder Co. v. Tearney, 131 Ill. 322, 23 N.E. 389, 7 L.R.A. 262, 19 Am. S. R. 34; Menolascino v. Superior Felt & Bedding Co., 313 Ill. App. 557, 40 N.E. 813; City of Lebanon v. Twiford, 13 Ind. App. 384, 41 N.E. 844; Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W. 2d 435; Andrews v. Western Asphalt Paving Corporation, 193 Iowa 1047, 188 N.W. 900; Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714, 6 L.R.A. (N.S.) 1111, 11 Ann. Cas. 131; Carlson v. Mid-Continent Development Co., 103 Kan. 464, 173 P. 910, L.R.A. 1918F, 318; Bailey v. Kelly, 93 Kan. 723, 145 P. 556, L.R.A. 1916D, 1220, 86 Kan. 911, 122 P. 1027, 39 L.R.A. (N.S.) 378; Rogers v. Bond Bros., 279 Ky. 239, 130 S.W. 2d 22; O’Neal v. Southern Carbon Co., 211 La. 1075, 31 So. 2d 216; Foley v. H. F. Farnham Co., 135 Me. 29, 188 A. 708; Toy v. Atlantic Gulf Pacific Co., 176 Md. 197, 4 A. 2d 757; Bern v. Boston Consol. Gas Co., 310 Mass. 651, 39 N.E. 2d 576; Ferriter v. Herlihy, 287 Mass. 138, 191 N.E. 352; Hakkila v. Old Colony Broken Stone & Concrete Co., 264 Mass. 447, 162 N.E. 895; Wilkinson v. Detroit Steel & Springs Works, 73 Mich. 405, 41 N.W. 490; H. Christianson & Sons v. City of Duluth, 225 Minn. 475, 31 N.W. 2d 270; Johnson v. Fairmont, 188 Minn. 451, 247 N.W. 572; Pearson v. Kansas City, 331 Mo. 885, 55 S.W. 2d 485; Boyle v. Neisner Bros., 230 Mo. App. 90, 87 S.W. 2d 227; Jeffers v. Montana Power Co., 68 Mont. 114, 217 P. 652; Toft v. City of Lincoln, 125 Neb. 498, 250 N.W. 748; Brownsey v. General Printing Ink Corporation, 118 N.J.L. 505, 193 A. 824; Dixon v. New York Trap Rock Corporation, 293 N.Y. 509, 58 N.E. 2d 517, motion for reargument denied, 294 N.Y. 654, 60 N.E. 2d 385; Hogle v. H. H. Franklin Mfg. Co., 199 N.Y. 388, 92 N.E. 794, 32 L.R.A. (N.S.) 1038, affirming judgment, 128 App. Div. 403, 112 N.Y.S. 881; Bohan v. Port Jervis Gas-Light Co., 122 N.Y. 18, 25 N.E. 246, 9 L.R.A. 711; Kremer v. City of Uhrichsville, 67 Ohio App. 61, 35 N.E. 2d 973; Ohio Stock Food Co. v. Gintling, 22 Ohio App. 82, 153 N.E. 341; Vantier v. Atlantic Refining Co., 231 Pa. 8, 79 A. 814; Gavigan v. Atlantic Refining Co., 186 Pa. 604, 40 A. 834; Rogers v. Philadelphia Traction Co., 182 Pa. *193473, 38 A. 399, 61 Am. S. R. 716; Rose v. Standard Oil Co. of New York, 56 R.I. 272, 185 A. 251, reargument denied, 56 R.I. 472, 188 A. 71; Braun v. Iannotti, 54 R.I. 469, 175 A. 656; Frost v. Berkeley Phosphate Co., 42 S.C. 402, 20 S.E. 280, 46 Am. S. R. 736, 26 L.R.A. 693; Cuffman v. City of Nashville, 26 Tenn. App. 367, 175 S. W. 2d 331; Soap Corp. of America v. Balis (Tex. Civ. App.), 223 S.W. 2d 957; Columbian Carbon Co. v. Tholen (Tex. Civ. App.), 199 S.W. 2d 825; G. L. Webster Co. v. Steelman, 172 Va. 342, 1 S.E. 2d 305; Terrell v. Chesapeake & O. R. Co., 110 Va. 340, 66 S.E. 55, 32 L.R.A. (N.S.) 371; Bartel v. Ridgefield Lumber Co., 131 Wash. 183, 229 P. 306, 37 A.L.R. 683; Flanagan v. Gregory & Poole, Inc., .... . W. Va. ...., 67 S.E. 2d 865; Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 21 S.E. 1035, 52 Am. S. R. 890; Dolata v. Berthelet Fuel & Supply Co., 254 Wis. 194, 36 N.W. 2d 97; Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575, 227 N.W. 385, reversing 199 Wis. 575, 224 N.W. 748.

Tbe laiv of private nuisance rests on tbe concept embodied in tbe ancient legal maxim Sic utere tuo ut alienum non laedas, meaning, in essence, tbat every person should so use bis own property as not to injure that of another. Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, 25 L.R.A. (N.S.) 831, 16 Ann. Cas. 472; Tennessee Coal, Iron & R. Co. v. Hartline, 244 Ala. 116, 11 So. 2d 833; Beam v. Birmingham Slag Co., supra; G. L. Webster Co. v. Steelman, supra. As a consequence, a private'll nuisance exists in a legal sense when one makes an improper use of bis T own property and in that way injures tbe land or some incorporeal right j of one’s neighbor. King v. Ward, 207 N.C. 782, 178 S.E. 577; Holton v. Oil Co., 201 N.C. 744, 161 S.E. 391; 39 Am. Jur., Nuisances, section 3.

Much confusion exists in respect to tbe legal basis of liability in tbe law of private nuisance because of tbe deplorable tendency of the courts to call everything a nuisance, and let it go at tbat. Moran v. Pittsburgh-Des Moines Steel Co., supra; Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E. 2d 724. The confusion on this score vanishes in large part, however, when proper heed is paid to tbe sound propositions tbat private nuisance is a field of tort liability rather than a single type of tortious conduct; tbat tbe feature which gives unity to this field of tort liability is tbe interest invaded, namely, the interest in tbe use and enjoyment of land; tbat any substantial non-trespassory invasion of another’s interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance; that the invasion which subjects a person to liability for private nuisance may be either intentional or unintentional; that a person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case; and that a person is subject to liability for an unintentional invasion when his conduct is negligent, reckless or ultrahazardous. See *194Scope and Introduction Note to Chapter 40, American Law Institute’s Restatement of the Law of Torts; Moran v. Pittsburgh-Des Moines Steel Co., supra; Soukoup v. Republic Steel Corp., 78 Ohio App. 87, 66 N.E. 2d 334; 66 C.J.S., Nuisances, section 8.

An invasion of another’s interest in the use and enjoyment of land is intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct. Restatement of the Law of Torts, section 825; E. Rauh & Sons Fertilizer Co. v. Shreffler, supra; Harman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451; Bohan v. Port Jervis Gas-Light Co., supra; Columbian Carbon Co. v. Tholen, supra. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury. Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 106 P. 581, 26 L.R.A. (N.S.) 183, 21 Ann. Cas. 1247; Blackman v. Iowa Union Electric Co., 234 Iowa 859, 14 N.W. 2d 721; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 39 A. 270, 63 Am. S. R. 533; Robinson v. Westman, 224 Minn. 105, 29 N.W. 2d 1; Bollinger v. Mungle (Mo. App.), 175 S.W. 2d 912; Powell v. Brookfield Pressed Brick & Tile Mfg. Co., 104 Mo. App. 713, 78 S.W. 646; Wallace & Tiernan Co. v. U. S. Cutlery Co., 97 N. J. Eq. 408, 128 A. 872, decree affirmed, 98 N. J. Eq. 699, 130 A. 920; Monaco v. Comfort Bus Line, 134 N.J.L. 553, 49 A. 2d 146; Jutte v. Hughes, 67 N.Y. 267; Whaley v. Citizens Nat. Bank, 28 Pa. Super. 531; Western Texas Compress Co. v. Williams (Tex. Civ. App.), 124 S.W. 493; Flanagan v. Gregory & Poole, Inc., supra; 39 Am. Jur., Nuisances, section 24. One of America’s greatest jurists, the late Benjamin N. Cordozo, made this illuminating observation on this aspect of the law: “Nuisance as a con-I cept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. One acts sometimes at one’s peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. Illustrations are abundant. One Avho emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. He is not to do such things at all, whether he is negligent or careful.” McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391.

When the evidence is interpreted in the light most favorable to the plaintiffs, it suffices to support a finding that in operating the oil refinery the High Penn Oil Company intentionally and unreasonably caused noxious gases and odors to escape onto the nine acres of the plaintiffs to such a degree as to impair in a substantial manner the plaintiffs’ use and *195enjoyment of tbeir land. This being so, tbe evidence is ample to establish tbe existence of an actionable private nuisance, entitling tbe plaintiffs to recover temporary damages from tbe High Penn Oil Company. Webb v. Chemical Co., 170 N.C. 662, 87 S.E. 633; Duffy v. Meadows, 131 N.C. 31, 42 S.E. 460; Hyatt v. Myers, 71 N.C. 271; Bohan v. Port Jervis Gas-Light Co., supra; 39 Am. Jur., Nuisances, sections 58, 59; 66 C.J.S., Nuisances, sections 23, 60. When tbe evidence is taken in tbe light most favorable to tbe plaintiffs, it also suffices to warrant tbe additional inferences that tbe High Penn Oil Company intends to operate tbe oil refinery in tbe future in tbe same manner as in tbe past; that if it is permitted to carry this intent into effect, tbe High Penn Oil Company will hereafter cast noxious gases and odors onto tbe nine acres of tbe plaintiffs with such recurring frequency and in such annoying density as to inflict irreparable injury upon tbe plaintiffs in tbe use and enjoyment of tbeir borne and tbeir other adjacent properties; and that tbe issuance of an appropriate injunction is necessary to protect tbe plaintiffs against tbe threatened irreparable injury. This being true, tbe evidence is ample to establish tbe existence of an abatable private nuisance, entitling tbe plaintiffs to such mandatory or prohibitory injunctive relief as may be required to prevent'the High Penn Oil Company from continuing tbe nuisance. Barrier v. Troutman, 231 N.C. 47, 55 S.E. 2d 933; Pruitt v. Bethell, 174 N.C. 454, 93 S.E. 945; Hyatt v. Myers, supra; Hedrick v. Tubbs, 120 Ind. App. 326, 92 N.E. 2d 561; Kepler v. Industrial Disposal Co., 84 Ohio App. 80, 85 N.E. 2d 308; 39 Am. Jur., Nuisances, sections 156, 158, 172; 66 C.J.S., Nuisances, sections 115, 116, 134.

Tbe contention of tbe High Penn Oil Company that tbe complaint states a cause of action based solely on negligence is untenable. To be sure, tbe plaintiffs assert that tbe defendants were “negligent and careless” in specified particulars in constructing and operating tbe oil refinery. When tbe complaint is construed as a whole, however, it alleges facts which show a private nuisance resulting from an intentional and unreasonable invasion of tbe plaintiffs’ interest in tbe use and enjoyment of tbeir land. Bohan v. Port Jervis Gas-Light Co., supra; Braun v. Iannotti, supra; Flanagan v. Gregory & Poole, Inc., supra; 39 Am. Jur., Nuisances, section 142.

For tbe reasons given, tbe evidence is sufficient to withstand tbe motion of tbe High Penn Oil Company for a compulsory nonsuit.

Tbe reverse is true with respect to tbe motion of tbe Southern Oil Transportation Company. Tbe complaint charges tbe Southern Oil Transportation Company with responsibility for tbe nuisance alleged solely upon tbe theory that it actively participated in tbe construction and operation of tbe oil refinery. According to all tbe evidence, tbe Southern Oil Transportation Company bad no part in these undertakings. *196The evidence for the plaintiffs indicates that the Southern Oil Transportation Company was the absolute owner of the land on which the oil refinery stands until 10 September, 1952; that it possessed the consequent power to control the use of the land until that date; and that it knowingly permitted the High Penn Oil Company to operate the oil refinery upon the land owned and controlled by it down to 10 September, 1952, in such a manner as to constitute a nuisance despite notice and protest from the plaintiffs. The complaint does not invoke this evidence as a foundation of liability on the part of the Southern Oil Transportation Company for the nuisance alleged. McManus v. Railroad, 150 N.C. 655, 64 S.E. 766; Maynard v. Carey Const. Co., 302 Mass. 530, 19 N.E. 2d 304; 66 C.J.S., Nuisances, section 88. These things being true, there is a fatal variance between the pleading and the proof of the plaintiffs with respect to the Southern Oil Transportation Company, and the action ought to have been involuntarily nonsuited as to the Southern Oil Transportation Company in the court below under the fundamental procedural rule that a recovery cannot be had in a civil action on the basis of matters alleged, but not proved, or proved but not alleged. Wilkins v. Finance Co., 237 N.C. 396, 75 S.E. 2d 118; 66 C.J.S., Nuisances, sections 126, 147.

'While the evidence is ample to overcome its motion for a compulsory nonsuit, the High Penn Oil Company is entitled to have the cause tried anew because of prejudicial error in the instruction covered by its sixteenth assignment of error. This portion of the charge is thus phrased: “The court charges you . . . that before you can find that the defendants operated and maintained their plant and premises as a nuisance, you must find from the evidence and by the greater weight thereof that their operation injuriously affected the health, safety, morals, good order, or general welfare of the community, or infringed upon the property rights of the individual complainants. If you so find from the evidence and by its greater weight, you will answer the second issue ‘Yes.’ If you fail to so find, you will answer it ‘No.’ ”

The core of this instruction is lifted bodily out of its context in Kass v. Hedgpeth, 226 N.C. 405, 38 S.E. 2d 164, and is without relevancy to the pleadings, the testimony, and the issues in the instant action. What has already been said respecting the basis of liability in the law of private nuisance makes it obvious that the instruction under scrutiny conveyed to the jury a rather vague and a quite incorrect notion as to the essential elements of a private nuisance. The instruction is not robbed of its prejudicial character by the fact that the court may have given the jury correct instructions on this phase of the case in other parts of the charge. “It is elementary that where there are conflicting instructions with respect to a material matter- — one correct and the other not — a new trial must be granted, as the jurors are not supposed to know which one is *197correct, and we cannot say they did not follow the erroneous instruction.” Hubbard v. R. R., 203 N.C. 675, 166 S.E. 802.

New trial as to the High Penn Oil Company.

Reversed as to the Southern Oil Transportation Company.

NEUBAUER, EJ.

¶ 1. This case is about the conversion of a helicopter when it was allowed to be used beyond the scope authorized by its owner. A managerial employee of Midwestern Helicopters, LLC (Midwestern), allowed a pilot to take a helicopter on a skydiving job after the owner of Midwestern had established a policy that commercial events required his written permission. The pilot ended up hitting a power line and crashing the helicopter. Midwestern sued both the employee and the pilot for conversion and negligence. The theory of the case was that the employee and the pilot took the helicopter without permission from Midwestern and property damage resulted. The case was tried to the court, and the trial court ruled that the employee's unauthorized permission to the pilot to take the helicopter out for the skydiving event, along with the resulting damage, constituted conversion. We agree and affirm.

FACTS

¶ 2. Midwestern is a small company that bought, sold and repaired helicopters, provided helicopter flight instruction, provided charter helicopter transportation, and arranged with contract pilots to sell helicopter rides at community events. John Farrish is the sole member of Midwestern. At some time during 2008, he decided he wanted to get out of the helicopter business. Among *215other preparations for sale, Parrish decided to stop doing "commercial event work," because this aspect of the business was losing money. Commercial event work was when an event entity, for example an airshow or a snowmobile festival, would arrange with Midwestern to have a helicopter at its event. The public would be able to purchase helicopter rides at the event. Midwestern would get paid per ticket, depending on how many people it flew.

¶ 3. To communicate his decision regarding commercial events to all those involved with scheduling and/or flying the helicopters, Parrish put a notice on Midwestern's online scheduling program, where pilots would schedule use of helicopters, that said, "No commercial events without written permission from Midwestern Helicopter." Parrish also communicated this new policy to the defendant William Coolbaugh at a June 5, 2008 meeting. Coolbaugh managed the maintenance, flight instruction, and commercial work at Midwestern.

¶ 4. The accident happened on July 4, 2008, when Jon Orlos, a contract pilot for Midwestern, crashed after hitting power lines. Coolbaugh had given Orlos permission to take a Midwestern helicopter to Skydive Chicago, an event at which Orlos would take up skydivers for jumps. Orlos apparently took some passengers on a side sightseeing trip when he flew low enough to hit power lines and crash, severely damaging the helicopter.

¶ 5. Midwestern sued Coolbaugh and Orlos for the loss of the helicopter, alleging conversion and negligence.1 Orlos did not answer the complaint, and a default judgment was entered against him. The case *216between Midwestern and Coolbaugh was tried to the court. The court found that Coolbaugh controlled the helicopter, that he gave Orlos permission to take the helicopter without the owner's consent, and that there resulted serious interference with the rights of the owner to possess the helicopter due to the resulting crash and $384,819 in damages. The trial court concluded that Midwestern had proven its case for conversion but that it had not met its burden of proof regarding negligence. Judgment was entered in favor of Midwestern, and Coolbaugh appeals.

DISCUSSION

Coolbaugh's Appeal and Standard of Review

¶ 6. Coolbaugh raises several issues on appeal. First, Coolbaugh argues that "the trial court erred when it found Coolbaugh guilty of conspiracy to convert the helicopter" and that Midwestern failed to meet its burden of proof for conspiracy. Second, Coolbaugh argues that the trial court "erred when it found that the conversion caused the crash." Finally, Coolbaugh argues that he is not liable because of the superseding cause defense and because public policy precludes liability.

¶ 7. We uphold the trial court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2) (2011-12).2 The trial court's findings will be affirmed unless the great weight and clear preponderance of the evidence supports a contrary finding. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). The trial court's decision that the facts amounted *217to conversion is a question of law which we review de novo. Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 56, 520 N.W.2d 99 (Ct. App. 1994) (whether facts fulfill legal standard is question of law).

Conspiracy

¶ 8. Regarding Coolbaugh's arguments on conspiracy, Midwestern did not plead conspiracy, and the trial court did not address conspiracy, much less find that there was a conspiracy to convert the helicopter. We need not address this argument further. See Rock Lake Estates Unit Owners Ass'n v. Township of Lake Mills, 195 Wis. 2d 348, 419-20 & n.5, 536 N.W.2d 415 (Ct. App. 1995) (we need not address arguments unsupported by references to the record).

Conversion

¶ 9. Conversion is the intentional, unauthorized control of another's chattel so as to interfere with the owner's possessory rights. A person is liable for conversion when he or she (1) intentionally controls or takes property belonging to another, (2) without the owner's consent, (3) resulting in serious interference with the owner's rights to possess the property. H.A. Friend & Co. v. Professional Stationery, Inc., 2006 WI App 141, ¶ 11, 294 Wis. 2d 754, 720 N.W.2d 96; see also Wis JI—Civil 2200. The general rule regarding damages for conversion is that "the plaintiff may recover the value of the property at the time of the conversion plus interest to the date of the trial." Metropolitan Sav. & Loan Ass'n v. Zuelke's, Inc., 46 Wis. 2d 568, 577, 175 N.W.2d 634 (1970) (citation omitted).

*218¶ 10. The evidence supports the trial court's findings that all three elements of conversion were present. First, the trial court found that Coolbaugh controlled the helicopter. Coolbaugh managed the flight school and maintenance work and oversaw the commercial work. Coolbaugh decided when a pilot could fly a helicopter on his or her own. Coolbaugh had authority to give pilots access to the hangar and the key locker. Coolbaugh himself testified that he gave Orlos permission to take the helicopter to the July 4th event. It is reasonable to infer that Coolbaugh had control of the helicopter if he gave someone else permission to use it.

¶ 11. Second, the trial court found that Coolbaugh did not have authority to give permission to take the helicopter to the skydiving event without the owner's consent. There was conflicting testimony about whether Parrish's ban on commercial events prohibited all events at which a pilot would take up individuals or only those that were "on speculation," in other words, where individuals would pay per ride and no income was guaranteed. There was also conflicting testimony about whether Skydive Chicago was a guaranteed-money event or per participant pay. The trial court found that "Mr. Parrish had made it clear to Mr. Coolbaugh that no helicopter should be used for an event... [where] the amount of money being paid was dependent on the unknown number of people that. . . would determine how much money might be paid for the helicopter." The trial court noted that the director of Skydive Chicago testified that he never made any agreement with Midwestern to pay an hourly rate and that there was no guarantee. The trial court found that Coolbaugh "had the helicopter under control and ... in *219his actions in granting Mr. Orlos the right to take it on the Skydive Chicago, he did it without the owner's consent." "[W]hen the trial judge acts as the finder of fact, and where there is conflicting testimony, the trial judge is the ultimate arbiter of the credibility of the witnesses." Noll, 115 Wis. 2d at 644 (citation omitted). The trial court found that Coolbaugh allowed Orlos to take the helicopter without the owner's consent. Implicit in this finding is the conclusion that Coolbaugh understood the scope of the "no commercial events" policy and deliberately violated it. Given the conflicting testimony, we cannot say that this conclusion is clearly erroneous.

¶ 12. Finally, the trial court found that there was serious interference with the rights of the owner based on the $384,819 in damage to the helicopter. It is reasonable to infer that this magnitude of damage seriously interfered with the owner's rights to possession. The amount was not disputed at trial. Because the trial court findings of fact were not clearly erroneous, we uphold them on appeal. Wis. Stat. § 805.17(2).

¶ 13. After finding these facts, the trial court made the conclusion of law that the facts constituted conversion under the elements stated above and Restatement (Second) of Torts, § 228 (1965), Exceeding Authorized Use (hereinafter Section 228), which states: "One who is authorized to make a particular use of a chattel, and uses it in a manner exceeding the authorization, is subject to liability for conversion to another whose right to control the use of the chattel is thereby seriously violated." This section "arises most frequently in cases of bailments under contract for a particular use, but it is equally applicable to a servant, an independent contractor, a gratuitous user, or any *220other person permitted to use the chattel." Section 228 cmt. a (emphasis added). Furthermore, it is not necessary that an individual convert the chattel for his own use; if a person takes control in defiance of the owner's rights, it is a conversion, for his or her own sake or the sake of another. See Mitzner v. Hyman, 333 S.E.2d 182, 183 (Ga. Ct. App. 1985); see also State ex rel. Kropf v. Gilbert, 213 Wis. 196, 211, 251 N.W. 478 (1933).

¶ 14. The trial court's conclusion that the facts of the case constituted conversion is supported by the illustrations to Section 228.

4. A rents an automobile to B to drive to X City and return. In violation of the agreement, B drives to Y City, ten miles beyond X City. This is not a conversion.

6. The same facts .. ., except that while the automobile is in Y City it is seriously damaged in a collision, with or without negligence on the part of B. This is a conversion.

Section 228 at 446. These examples illustrate that whether an unauthorized exercise of dominion constitutes conversion depends on the severity of interference with the owner's right to control. Restatement (Second) Torts § 222A cmt. d. at 433 (1965) ("The question is nearly always one of degree, and no fixed line can be drawn.") Here, Coolbaugh knew that Orlos was taking the helicopter to an event that was prohibited by Parrish's policy barring commercial events. Yet Coolbaugh gave Orlos permission to take the helicopter. When Orlos went to the prohibited event and crashed the helicopter, it was a conversion, whether or not Coolbaugh or Orlos was negligent with regard to the accident.

*221 Causation

¶ 15. Coolbaugh argues that the trial court "erred when it found that the conversion caused the crash" and that we review this as a mixed question of fact and law. First, there is no causation element in conversion; the conversion must result in interference with the owner's rights to possess the property. See H.A. Friend & Co., 294 Wis. 2d 754, ¶ 11; see also Wis JI—Civil 2200. Second, the trial court did not find that the conversion caused the crash. The trial court found that "there was a result of serious interference with the rights of the owner to possess the property."

Negligence

¶ 16. The trial court concluded that Midwestern had not met its burden of proof on negligence. Coolbaugh, understandably, does not challenge this conclusion. Instead, Coolbaugh argues that two defenses applicable in negligence cases—public policy and superseding cause—should preclude liability in this conversion case. Coolbaugh cites no authority applying either rationale in a conversion case. Coolbaugh does not even argue why these doctrines should apply to conversion as they do to negligence, simply stating: "The same analysis for conversion applies here to Coolbaugh." We decline to import these negligence defenses into this conversion case, in which the trial court rejected the negligence claim. See Fritz v. McGrath, 146 Wis. 2d 681, 686, 431 N.W.2d 751 (Ct. App. 1988) (we need not consider arguments broadly stated but not specifically argued).

*222CONCLUSION

¶ 17. The trial court's findings of facts are supported by the evidence, and its conclusion that the facts fulfilled the legal standard for conversion is not an error of law. We therefore affirm the judgment.

By the Court.—Judgment affirmed.

OPINION

Justice SUTTELL, for the Court.

The illegal diversion of electricity powers this appeal. An underground aluminum bypass conductor leading from the front yard of the defendants’ home to an “unmetered” electrical panel in the garage allowed the defendants to receive a substantial amount of electrical service for which they were not billed. The defendants, Bernard J. and Marsha Carbone, appeal from a judgment of the Superior Court in favor of the plaintiff, Narragansett Electric Company, on its claims for conversion and unjust enrichment. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be decided summarily. After considering the written and oral submissions of the parties and examining the record, we are of the opinion that the issues raised in this appeal may be resolved without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

*91I

Facts and Procedural History

The defendants built their house at 90 Ann Drive in East Greenwich, Rhode Island, and began living there in December 1986. According to plaintiff, it supplied electricity to the home since December 18, 1986. In early 1998, plaintiff reviewed electrical consumption records for the premises and suspected low-usage patterns with respect to the known equipment on the premises. The review also revealed that the consumption pattern was “flat, without seasonal variations.”

For a period of approximately eighteen months, Narragansett Electric monitored the amount of electricity that flowed into defendants’ house by installing three check meters on the “pad-mounted transformer” 1 that was on the street in front of 90 Ann Drive. The plaintiff also replaced the billing meter at defendants’ residence to ensure that it was reading accurately. The monthly readings on the check meters were compared with monthly readings taken on the billing meter located on the premises. From this investigation, plaintiff discovered that a large amount of electricity was flowing into defendants’ home that was not being read by defendants’ billing meter and for which defendants were not being billed.

On September 7, 2000, personnel from Narragansett Electric and the State Police entered 90 Ann Drive to execute a search warrant. During the search, Mr. Carbone disclosed the location of an underground bypass conductor that had been diverting electricity away from the home’s billing meter to the unmetered panel in the garage. Narragansett Electric workers dug up the two ends of the bypass, conducted amperage tests on the wires emanating from both the metered and unmetered panels, and took an inventory of all items and appliances that consumed electricity on the premises. Thereafter, plaintiff presented defendants with a bill for the amounts of electricity that it believed defendants had consumed through the illegal bypass since 1986.

Subsequently, on December 20, 2000, plaintiff filed a civil action against defendants seeking damages for book account (count 1), conversion (count 2), unjust enrichment (count 3), and for a doubling of damages, pursuant to G.L.1956 § 9-1-2, that plaintiff otherwise would be entitled to if defendants should also be found criminally hable for larceny (count 4).2 Before trial, on December 10, 2001, defendant Mrs. Carbone filed a motion for summary judgment on all four counts of the complaint. Two orders were entered on January 23, 2002, granting Mrs. Carbone’s summary judgment motion on counts 1 and 4, but denying it on counts 2 and 3.

A bench trial was held before a trial justice of the Superior Court in August *922003. Before trial, defendants filed a motion in limine to preclude plaintiff from admitting any expert testimony on the grounds that plaintiff failed to disclose any expert witnesses who were expected to testify at trial in its answers to interrogatories. The trial justice denied the motion, noting that it was his understanding that plaintiff was not planning to call any “outside” expert witnesses. He said that any employee of plaintiff who had been disclosed as a lay witness during discovery was competent to testify in the form of facts or opinions about his or her given area of work for the company. The trial justice also granted defense counsel leave to renew his objection during the course of the trial depending on the scope of the proposed witnesses’ testimony. Similarly, the trial justice held in abeyance defendants’ pretrial motion requesting a Dau-bert hearing with respect to any expert witness.

At trial, plaintiff presented the testimony of five of its employees and introduced numerous exhibits to explain its investigation and calculations of lost revenue for unbilled electricity provided to defendants’ home. Mrs. Carbone did not testify at trial, but plaintiff offered her pretrial deposition testimony as a full exhibit. Mrs. Carbone testified that she had lived at 90 Ann Drive since 1986, but did not know who did the original electrical work on the house. She said that the home was always gas-heated and had central air-conditioning since 1986. She was unsure when the heated in-ground pool was built, but believed that it was around 1998. Mrs. Car-bone testified that she did not know whether the unmetered panel was in the house since it was built, and she had no idea about which appliances each of the two panels serviced. She said that she was unaware of the illegal bypass until after the search, when she heard of the accusations against her and her husband on a television news report.

At the close of plaintiffs evidence, both plaintiff and defendants made motions for judgment as a matter of law. The trial justice reserved on the motions. Mr. Car-bone then testified that the bypass was not installed when the house was built in 1986, but rather in 1997 or 1998, when one Pat Saggerson did electrical work in connection with the regrading of the yard and installation of the pool, pool house, shrubs, air-conditioning, and exterior lights.3 Mr. Carbone said that he did not have a bill from Mr. Saggerson’s work because the two had a friendly relationship in which each would sometimes do work in return for work done by the other. Unlike Mrs. Carbone, who testified that they had central air-conditioning since 1986, he said that the electrical air-conditioning units were not in the home since it was built. He averred that his wife was mistaken about the time when the air-conditioning and the heated pool were installed. He also said that he did not use the electrical heaters in the garage because they did not work properly. Mr. Carbone said that he did not label the unmetered panel with the appliances shown on it except for one label for a “bug light,” and did not know who did because it was a “used panel.”

James D. Paliotta, an electrical contractor, also testified for defendants that he installed the air-conditioning units in the Carbones’ house in 1997. At the close of all the evidence, defendants renewed their motions for judgment as a matter of law. The trial justice once again decided to -reserve on the motions until he delivered his decision in the case.

On February 18, 2004, the trial justice issued his bench decision. He rejected *93Mr. Carbone’s contention that the bypass was installed in 1997, finding instead that it was installed in 1986, when the house was built. He found that “Mr. Carbone’s testimony as it relates to the bypass having been installed in 1997 rather than 1986[was] not credible” in light of the inventory of usage that existed on the premises up to 1997. He said that it was “unlikely that the residence did not have an unmetered panel” since 1986 based on that inventory, and found that Mr. Car-bone had knowledge of the presence of the bypass since 1986. The trial justice further found that the pool was not installed until 1997 and that the pool house and pool heater were not installed until 1998.

The trial justice also noted that plaintiff “presented detailed evidence” comparing the billed electricity usage to what it contended was the actual usage. Accordingly, he concluded that plaintiff sustained $147,832 in damages for loss of revenue as a result of the bypass, which figure factored in adjustments for the pool not being in use until 1997. He said that this significant figure must be understood in light of the multitude of electrical appliances inventoried at the premises, which he listed in some detail.4 He also noted that defendants did not challenge plaintiffs revenue loss calculations “in any serious manner other than to baldly assert that it is speculation,” and “offered no alternative calculation.” Based on this, the trial justice found that plaintiff had clearly met its burden of proof on damages.

On the first claim for book account, the trial justice found Mr. Carbone not liable after noting that summary judgment already had been granted in favor of Mrs. Carbone on that count before trial. On the claim for conversion, Mr. Carbone was found individually liable for $147,832, “the value of the electricity converted,” plus $1,861, the “uncontroverted sum that plaintiff reasonably expended to detect and ascertain the illegal usage.” Mrs. Carbone was found not liable for conversion because she did not have the requisite knowledge of the bypass. On plaintiffs claim for unjust enrichment, the trial justice found Mr. and Mrs. Carbone jointly and severally hable for $147,832, or “the value of the electricity that was received as a result of the bypass.” Finally, after noting that count 4 (larceny) against Mrs. Car-bone previously was dismissed, the trial justice found that Mr. Carbone also was not hable on count 4 because plaintiff offered no argument to support such a cause of action.

An order implementing the trial justice’s decision was entered on February 24, 2004. A purported final judgment was filed on the same day; however, that judgment *94was not signed by either the trial justice or the court clerk. The defendants filed a notice of appeal on March 8, 2004. In a November 16, 2005 order assigning the case to this Court’s show-cause calendar, the case was remanded to the Superior Court to obtain a signed judgment. On February 2, 2006, a signed judgment was entered.5 On appeal, defendants allege five assignments of error that warrant reversal of the judgment.

II

Expert Testimony

The defendants’ first argument on appeal is that the trial justice erred in allowing plaintiff to introduce expert testimony. They contend that the trial justice should have barred such expert testimony because plaintiff never supplemented its answers to interrogatories to disclose its expert witnesses. The defendants had propounded interrogatories to plaintiff that included a multipart question asking plaintiff to disclose information relating to any expert witness plaintiff expected to call to testify during trial. The plaintiff responded that no determination had been made at that time about whether any expert witnesses would be called and that it would supplement the answer in accordance with the Superior Court Rules of Civil Procedure, if necessary. The plaintiff did not supplement its answers. Although plaintiff never sought during the trial to qualify any of its witnesses as experts, on appeal defendants argue that the trial justice erred in admitting expert testimony.

The defendants assert that “Narragansett evidenced five witnesses, some of whom gave expert testimony and conclusions!;]” yet they identify only one such witness, Leo Dalbec, the administrator of revenue protection at Narragansett Electric at the time of its investigation on defendants. We previously have indicated that specific references to the record are necessary to allow this Court to conduct a meaningful review. See, e.g., Waters v. Magee, 877 A.2d 658, 666 (R.I.2005); Falvey v. Women and Infants Hospital, 584 A.2d 417, 419-20 (R.I.1991). Here, defendants have failed to direct our attention to any portion of the record in which any of the four unnamed witnesses may have provided “expert” testimony. We limit our review in this regard, therefore, to the testimony of Leo Dalbec.

The defendants challenge the trial justice’s admission of Mr. Dalbec’s testimony concerning his calculations of the amounts of unmetered electricity that the Carbones received since 1986. The defendants’ argument that expert testimony was inadmissible, because plaintiff failed to identify expert witnesses during discovery is essentially an argument that plaintiff violated Rule 33(c) of the Superior Court Rules of Civil Procedure, which requires that “[i]f the party furnishing answers to interrogatories subsequently shall obtain information which renders such answers incomplete or incorrect, amended answers shall be served within a reasonable time thereafter but not later than 10 days prior to the day fixed for trial.” For a violation *95of this rule, Rule 37(d) of the Superior Court Rules of Civil Procedure provides the court with the discretion to “on motion * * * make such orders in regard to the failure as are just.” We thus must decide whether the trial justice erred by not precluding plaintiff from introducing Mr. Dal-bec’s testimony.

“[T]he question of whether a witness is qualified to express an expert opinion is a matter that is committed to the sound discretion of the trial justice, and the exercise of such discretion will not be disturbed on appeal absent a showing of abuse.” Mangasarian v. Gould, 537 A.2d 403, 405 (R.I.1988). As already noted, plaintiff did not attempt to qualify any of its witnesses as experts. This Court has recognized, however, that even when no motion is made before the lower court to qualify a witness as an expert, a trial justice nonetheless may have treated that witness as an expert, justifying our analysis under the deferential standard normally applied to the admission of expert testimony. See New England Telephone and Telegraph Co. v. Clark, 624 A.2d 298, 303 (R.I.1993); see also Rossilli v. Iacovelli, 88 R.I. 456, 459, 149 A.2d 709, 711 (1959) (stating that the abuse of discretion standard “is applicable in any case in which the qualification of a witness to testify to matters within his knowledge is questioned”). We have characterized expert testimony as that “of a mechanical, scientific, professional or like nature, none of which is within the understanding of laymen of ordinary intelligence, and where the witness seeking to testify possesses special knowledge, skill or information about the subject matter acquired by study, observation, practice or experience.” Morgan v. Washington Trust Co., 105 R.I. 13, 17-18, 249 A.2d 48, 51 (1969). Even if we agreed with defendants that some of Mr. Dalbec’s testimony may be characterized as expert testimony, we are satisfied that the trial justice did not err in admitting such evidence.

Forbidding a party to call a witness after a Rule 33(c) violation “is a drastic sanction that should be imposed only if it is apparent that the violation has or will result in prejudice to the party asserting the violation.” Gormley v. Vartian, 121 R.I. 770, 775, 403 A.2d 256, 259 (1979). We have made clear that such prejudice results when the party alleging a violation is surprised by the witness’s testimony because the purpose of Rule 33(c) is “to prevent trial by ambush” and “to enable litigants to prepare for trial free from the elements of surprise and concealment so that judgments can rest upon the merits of the case rather than the skill and maneuvering of counsel.” Neri v. Nationwide Mutual Fire Insurance Co., 719 A.2d 1150, 1152 (R.I.1998) (quoting Gormley, 121 R.I. at 775, 403 A.2d at 259).

We are satisfied that Mr. Dalbec’s testimony concerning plaintiff’s calculations of unbilled electrical service did not come as a surprise to defendants and therefore did not result in prejudice. In Neri, we held that a Rule 33(c) violation was prejudicial to the defendant because the plaintiff did not disclose that he would testify as his own expert and thus the defendant did not have the opportunity to depose the plaintiff in that specific capacity as an expert on causation. Neri, 719 A.2d at 1152-53. In contrast, in the present case, defendants were on notice of the dollar amounts claimed for unmetered electricity from the bills that plaintiff submitted to defendants long before the trial. In addition, when defendants deposed Mr. Dalbec before trial, they had notice of the loss calculations and how they were computed from the complaint and from Mr. Dalbec’s affidavit, which was attached and referred to therein. Moreover, plaintiffs answers to defen*96dants’ interrogatories revealed the amounts claimed to be owed as well. Because of this prior notice, we are satisfied that defendants did not suffer a “trial by ambush” when Mr. Dalbec testified about the timing of the bypass installation and the loss calculations. See id. at 1152.

Moreover, Mr. Dalbec was an experienced employee of Narragansett Electric, testifying about matters within his areas of responsibility for plaintiff before a trial justice sitting without a jury. We are well satisfied that under these circumstances the trial justice was acting within his discretion in admitting the challenged testimony. As the trial justice noted, neither Mr. Dalbec nor any of the other witnesses was an “outside expert, so-called, who has been engaged outside of the employment of the utility to proffer specific opinion for compensation.” We also observe that a trial justice in a jury-waived trial may be afforded great latitude to determine what testimony may be properly characterized as expert testimony. Here, the trial justice did not err in allowing Mr. Dalbec to testify.

Likewise, we reject, defendants’ contention that they were entitled to a Daubert hearing to determine the scientific validity of Mr. Dalbec’s loss revenue calculations.6 A party makes a proper motion for such an evidentiary hearing only when he or she sufficiently alerts the trial justice of the scientific issue at stake by presenting an affidavit or offer of proof to substantiate his or her claim that the opposing party’s proposed expert testimony is scientifically invalid. Roe v. Gelineau, 794 A.2d 476, 488 (R.I.2002); DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 688 (R.I.1999). The defendants in the present case offered virtually no explanation of why a Daubert hearing was necessary. We therefore are satisfied that the trial justice did not err in failing to hold a DaubeH hearing concerning Mr. Dalbec’s testimony.

Ill

Conversion

Next, defendants argue that the trial justice erred in finding Mr. Carbone liable for conversion because electricity is an intangible item that may not be converted and plaintiff failed to prove that Mr. Carbone “possessed” or “utilized” the electricity.7 We consider the question of whether Mr. Carbone converted electricity to be a mixed question of law and fact. The rule of law on conversion is undisputed; the issue is whether the facts in this case satisfy the elements of conversion. *97 See Johnston v. Poulin, 844 A.2d 707, 714 (R.I.2004); see also Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).

“The findings of a trial justice sitting -without a jury are entitled to great weight, and the ‘resolution of mixed questions of law and fact, as well as the inferences and conclusions drawn from the testimony and evidence, are entitled to the same deference.’ ” Hawkins v. Town of Foster, 708 A.2d 178, 182 (R.I.1998) (quoting Wickes Asset Management, Inc. v. Dupuis, 679 A.2d 314, 317 (R.I.1996)). In the present case, the trial justice found that Mrs. Carbone could not be held liable for conversion because she lacked the requisite knowledge of the bypass in her home. Mr. Carbone, on the other hand, was found liable for conversion of unbilled electricity because the trial justice found that the elements of conversion had been proven sufficiently against him and there was no persuasive authority that electricity may not be the subject of a conversion action.

“To maintain an action for conversion, [a] plaintiff must establish that [it] was in possession of the personalty, or entitled to possession of the personalty, at the time of conversion.” Montecalvo v. Mandarelli, 682 A.2d 918, 928 (R.I.1996). Then, “the gravamen of an action for conversion lies in the defendant’s taking the plaintiffs personalty without consent and exercising dominion over it inconsistent with the plaintiffs right to possession.” Fuscellaro v. Industrial National Corp., 117 R.I. 558, 560, 368 A.2d 1227, 1230 (1977). This intentional exercise of control over the plaintiffs chattel must “so seriously interfere! ] with the right of another to control it that the [defendant] may justly be required to pay the other the full value of the chattel.” Montecalvo, 682 A.2d at 928 (quoting Restatement (Second) Torts § 222(A)(1) at 431 (1965)).

“At common law any tangible chattel that could be lost and found could be the subject of conversion.” Montecalvo, 682 A.2d at 928. However, “the tort of conversion at common law excluded intangible personal property because intangibles, like land, could not be lost or found.” Id. Consequently, this Court has held that “a conversion action will not lie for a partnership interest or other intangible property right that is not manifested by a tangible instrument, such as a written agreement, a bankbook, or a promissory note, that may, in turn, be converted.” Id. at 929; see also Iavazzo v. Rhode Island Hospital Trust Co., 51 R.I. 459, 462-63, 155 A. 407, 408 (1931).

This Court has not had occasion to decide whether electricity is the type of tangible personal property that may be converted. Other courts, however, have suggested that electricity has the characteristics of tangible personal property. See, e.g., Curry v. Alabama Power Co., 243 Ala. 53, 8 So.2d 521, 526 (1942) (concluding that electricity is tangible personal property because it is made up of electrons that have mass or weight, may be detected- by the senses of taste, smell, and touch, and moves through the circuit in the same way as a flow of water would move); Davis v. Gulf Power Corp., 799 So.2d 298, 299-300 (Fla.Dist.Ct.App.2001) (holding that electricity has the characteristics of tangible personal property for purposes of a Florida tax statute); Texas Eastern Transmission Corp. v. Benson, 480 S.W.2d 905, 909 (Tenn.1972) (characterizing electricity “as a taxable item of tangible personal property”); see also G.E. Lothrop Theatres Co. v. Edison Electric Illuminating Co. of Boston, 290 Mass. 189, 195 N.E. 305, 307 (1935) (declining to decide whether electricity can be converted, but suggesting that assuming arguendo that it may be, the defendant would not be liable because *98he did not intend to take title to the electricity).

Moreover, some courts have held outright that electricity may be the subject of a conversion cause of action. See DeLong v. Osage Valley Electric Cooperative Association, 716 S.W.2d 820, 323-24 (Mo.Ct. App.1986) (holding that a jury could reasonably infer a conversion of electricity by the plaintiffs’ tampering with an electrical meter for the purpose of depriving the defendant of payment for electricity used); Good Sports of New York, Inc. v. Llorente, 280 A.D.2d 261, 720 N.Y.S.2d 119, 119-20 (2001) (holding that the defendant-landlords had converted electrical services when the evidence showed that their building was charged $0 for electricity in its common areas during three years when its wires were improperly hooked up to the plaintiff-tenants’ meter). In addition, although it was not addressing whether electricity may be the subject of a conversion action, the United States Supreme Court has said that, “[hjowever lacking it may be in body or substance, electrical energy, nevertheless, possesses many of the ordinary tokens of materiality. It is subject to known laws; manifests definite and predictable characteristics; [and] may be transmitted from the place of production to the point of use * * Utah Power and Light Co. v. Pfost, 286 U.S. 165, 180, 52 S.Ct. 548, 76 L.Ed. 1038 (1932).

We agree with these courts that electricity possesses many of the characteristics of tangible property, even if its current may not be “lost and found” in the traditional sense. See Montecalvo, 682 A.2d at 928. Moreover, in our state, it is a misdemeanor to bypass an electrical meter to receive unbilled electrical service. See G.L.1956 § 11-35-9. We see no persuasive rationale for holding that electrical current may be fraudulently consumed or diverted, but that those whose electricity was wrongly appropriated may not recover the loss of the value of that electricity in a civil action for conversion.

We also are satisfied that plaintiff sufficiently proved conversion of electricity in the present case. First, it was undisputed that plaintiff originally possessed or was entitled to possess the unbilled electricity that ended up in the Carbone home. Second, Mr. Carbone, through his use of the underground bypass, then diverted the electrical current from plaintiffs transformer pad into his home without plaintiffs consent. Finally, the evidence showed that Mr. Carbone exercised dominion or control over that electricity by using it in his home to power a portion of his impressive inventory of electrical appliances.

The defendants’ argument that there was no evidence that they actually “utilized” the unmetered electrical currents is without merit. As the trial justice noted, there was a multitude of electrical appliances inventoried in the house, and the evidence was uncontradicted that at least some of these appliances were not receiving electricity through the main billing meter on the house. Moreover, there was evidence that the unmetered panel’s switches were labeled specifically for certain of those appliances. As the trial justice said, defendants offered no credible evidence that they did not use the electrical current running through the underground bypass to the unmetered panel and into the Carbone home; nor did defendants challenge or refute the accuracy of the check meter readings or the resulting calculation of unbilled electricity.

Notably, at no time did Mr. Carbone dispute that an illegal bypass was installed on his premises; yet, he asks this Court to conclude that although electricity got through the bypass to his home, plaintiff did not prove that the Carbones “utilized” *99the electrical current. Affording the proper deference to the trial justice’s inferences, factual findings, and conclusions concerning this mixed question of law and fact, we cannot say that the trial justice clearly was wrong in holding Mr. Carbone hable for conversion.

IV

Unjust Enrichment

The defendants also challenge the trial justice’s ruling that Mr. and Mrs. Carbone are jointly and severally liable for unjust enrichment. They argue that plaintiff did not prove that a measurable benefit was conferred on defendants because it failed to trace the unmetered electricity from the illegal bypass into the specific appliances allegedly powered by the unbilled electricity in the home. In addition, defendants contend that Mrs. Carbone did not “appreciate” the benefit of the illegal bypass because she had no knowledge of its existence.

Recovery for unjust enrichment is predicated upon the equitable principle that one shall not be permitted to enrich himself at the expense of another by receiving property or benefits without making compensation for them. R & B Electric Co. v. Amco Construction Co., 471 A.2d 1351, 1355 (R.I.1984). To recover under a claim for unjust enrichment,

“a plaintiff is required to prove three elements: (1) a benefit must be conferred upon the defendant by the plaintiff, (2) there must be appreciation by the defendant of such benefit, and (3) there must be an acceptance of such benefit in such circumstances that it would be inequitable for a defendant to retain the benefit without paying the value thereof.” Bouchard v. Price, 694 A.2d 670, 673 (R.I.1997) (quoting Anthony Corrado, Inc. v. Menard & Co. Building Contractors, 589 A.2d 1201, 1201-02 (R.I.1991)).

We are satisfied that the trial justice did not err in finding that these three elements were met in the present case against both defendants. First, a benefit was conferred on defendants. This Court has held that a benefit is conferred when improvements are made to property, materials are furnished, or services are rendered without payment. See, e.g., Dellagrotta v. Dellagrotta, 873 A.2d 101, 113-14 (R.I.2005) (home improvements); Landmark Medical Center v. Gauthier, 635 A.2d 1145, 1148-49 (R.I.1994) (medical services); Newport Oil Corp. v. Viti Bros., Inc., 454 A.2d 706, 706-08 (R.I.1983) (gasoline deliveries made to the defendant service station for resale); Providence Steel & Iron Co. v. Flammand, 413 A.2d 487, 487-88 (R.I.1980) (steel building components); Best v. McAuslan, 27 R.I. 107, 108-10, 60 A. 774, 774-75 (1905) (medical services). Here, the electricity that flowed from the transformer pad, through the underground bypass, and into the unmetered panel in the Carbones’ garage, is analogous to other services for which this Court has upheld awards of payment to plaintiffs under an unjust enrichment theory. Accordingly, we think that the evidence warranted the trial justice’s inference that the unpaid electricity benefited defendants in that they were able to power at least a portion of their large home for free.

The defendants, however, contend that no measurable benefit ever was conferred on them because there was no proof at trial that the electricity that went out of the transformer actually went into the Carbone home. This argument lacks merit. As in most civil cases, plaintiff bears the burden to prove each element by a preponderance of the evidence, meaning that the trier of fact “must believe that the facts asserted by the proponent are more *100probably true than false.” Parker v. Parker, 103 R.I. 435, 442, 238 A.2d 57, 61 (1968). This Court has indicated that even when there is no direct evidence on a particular issue, a fair preponderance of the evidence may be supported by circumstantial evidence. See Harriss v. Orr, 65 R.I. 369, 379-80, 14 A.2d 674, 679 (1940). Moreover, other courts have determined that circumstantial evidence of investigations done by electric companies, comparing the ratio of metered electricity to total energy usage during specified time frames to ascertain the amount of unbilled usage, was enough to support the inference that the unbilled electricity reached a consumer’s property and that such consumer therefore should pay for that unbilled service. See, e.g., Illinois Power Co. v. Champaign Asphalt Co., 19 Ill.App.3d 74, 310 N.E.2d 463, 469-70 (1974); New Orleans Public Service, Inc. v. Delaney, 379 So.2d 842, 842-43 (La.Ct.App.1980); Northern States Power Co. v. Lyon Food Products, Inc., 304 Minn. 196, 229 N.W.2d 521, 525-26 (1975).

We believe that in this case, plaintiff presented enough circumstantial evidence for the trial justice to determine that a benefit was conferred on defendants by a fair preponderance of the evidence. The plaintiff presented extensive testimony concerning the electrical current that registered on the check meters, but did not register on the billing meter assigned to the Carbones’ home. The evidence further revealed that the unmetered panel connecting to the illegal bypass was labeled with certain appliances, and that there were electrical devices inventoried in the Carbone home that did not connect to the metered panel for which electricity the Carbones were billed. Based on this circumstantial evidence, the trial justice properly could infer that a benefit was conferred on defendants through their use of the illegal bypass to divert electricity.

The defendants also argue with respect to the second element of unjust enrichment that there was no evidence that Mrs. Carbone “appreciated” the benefit of the electricity because she was unaware of the bypass’s existence. We disagree. On the contrary, we are satisfied ■ that the trial justice was warranted in finding Mrs. Car-bone jointly and severally liable for unjust enrichment because she was a homemaker who paid some of the electric bills during the relevant time, and from that fact an inference properly could be made that she used the home’s many appliances, some of which were powered by the unbilled electricity.

Even more importantly, addressing the third element of unjust enrichment, we conclude that it would be inherently unjust to allow defendants to have bypassed the billing meter and then deny the electric company compensation for the services so purloined. This Court has said that “ ‘[t]he most significant requirement * * * is that the enrichment to the defendant be unjust.’ ” R & B Electric Co., 471 A.2d at 1356. If the plaintiff can prove the reasonable- value of services rendered without payment, the defendant justly may be compelled to pay for those services. See Best, 27 R.I. at 111, 60 A. at 775; see also Sullivan v. District of Columbia Paper Mills, Inc., 67 R.I. 330, 334-35, 23 A.2d 765, 767-68 (1941). As the trial justice noted, the evidence plaintiff presented of the loss calculations for amounts defendants owed went uncontradicted at trial. Based on the circumstantial evidence that unbilled electricity flowed through the illegal bypass into the Carbone home and plaintiffs ability to show the reasonable value of that stolen electrical ■ service, it would be inequitable to deny plaintiff the opportunity to be paid for the unbilled service.

*101V

Statute of Limitations

The defendants also argue that plaintiffs action was time-barred because the trial justice found that the illegal bypass was installed in 1986, and plaintiff did not file its action until 2000, more than ten years after the cause of action accrued. The plaintiff responds that the statute of limitations issue was not preserved for appellate review because it never was raised at trial, and that, regardless, the trial justice properly applied the discovery rule in finding the action timely.

The trial justice stated that defendants raised the statute of limitations issue for the first time in their post-trial brief. In fact, however, defendants averred a statute of limitations defense in their answer to plaintiffs complaint. Under Rule 8(c) of the Superior Court Rules of Civil Procedure, the defense of the statute of limitations must be affirmatively raised. The failure to plead this affirmative defense results in its waiver. LaBounty v. LaBounty, 497 A.2d 302, 305 (R.I.1985). Because defendants both pled the statute of limitations defense in their answer, and argued it before the trial justice, we are satisfied that the issue was not waived and is properly preserved for our review. See State v. Lambrechts, 585 A.2d 645, 646 (R.I.1991); see also Hanley v. State, 837 A.2d 707, 711 (R.I.2003).

The statute of limitations argument presented to the trial justice in defendants’ post-trial memorandum was that, if the court found that the bypass was installed in 1986, the entire action would be time-barred. The trial justice was correct to reject this reasoning. The causes of action for conversion and unjust enrichment encompassed an ongoing and continuous theft of electricity from 1986 to 2000. The accrual of such actions, therefore, was not fixed in time as of the date the illegal bypass was installed.

On appeal, however, defendants raise an additional argument, asserting that “[e]ven if the Court were to consider the bypass a continuing theft of electricity, then the damages would only extend ten (10) years, not fourteen (14).” We deem this aspect of defendants’ appellate argument waived. See Roe, 794 A.2d at 482 (“[U]nder the raise-or-waive rule, this Court refrains from reviewing issues not raised in the trial court.”). Moreover, defendants fail to cite to any part of the record that suggests that the trial justice overlooked or misconceived evidence, or was otherwise clearly wrong, when he found that “[t]here is nothing in the record * * * to suggest that plaintiff could reasonably have discovered the bypass before when it in fact did discover it.” See Article I, Rule 16(a) of the Supreme Court Rules of Appellate Procedure.

VI

The Trial Justice Did Not Overlook Material Evidence

Finally, defendants argue that the trial justice overlooked evidence by choosing not to believe Mr. Carbone’s testimony that the bypass was installed in 1998, rather than in 1986, when the home was built. They contend that he also overlooked a 1997 photograph of the garage showing that the unmetered panel was not yet installed and evidence that plaintiff mistakenly believed that the house had electric heat rather than gas heat.

“[T]his Court will not disturb determinations of credibility in a non jury trial unless the findings are clearly wrong or the [trial justice] misconceived or overlooked material evidence.” Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I.2003) *102(quoting Andreozzi v. Andreozzi, 813 A.2d 78, 82 (R.I.2003)). Affording the trial justice’s findings in the present case the deference they are due, we cannot say that he was clearly wrong in finding that the bypass was installed in 1986 and that defendants’ evidence to the contrary was incredible. We agree with the trial justice that “the inventory of usage that existed on the premises up to 1997” makes it “unlikely that the residence did not have an unme-tered panel from the time it was built in 1986” and that it was thus “inherently probable that the illegal bypass was installed when the home was constructed.”

Furthermore, the photographs that the defendants point to as evidence of the timing of the bypass installation did not have dates on them. The only indication of when the photographs were taken came from the testimony of Mr. Carbone. Accordingly, the trial justice was free to discredit such testimony as lacking in credibility as well, and he did not need to categorically accept or reject each piece of evidence in his decision for this Court to uphold it because implicit in the trial justice’s decision are sufficient findings of fact to support his rulings. See Mattera v. Mattera, 669 A.2d 538, 541 (R.I.1996). In addition, the trial justice’s decision does not appear to be predicated upon any determination of whether the Carbone house had gas or electric heat. We therefore hold that the trial justice did not overlook material evidence.

Conclusion

For the reasons set forth herein, we affirm the judgment of the Superior Court, to which court the record in this case shall be remanded.

Branch, C. J.

The statute under which these actions were brought reads as follows: “23. Liability of Owner. Any person to whom or to whose property damage may be occasioned by a dog not owned or *320kept by him shall be entitled to recover such damage of the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was in the commission of a trespass or other tort.”

It is the contention of the defendants that the plaintiff Elaine was engaged in the commission of a trespass at the time of her injury and is, therefore, barred from recovery under the statute. The law in regard to a trespass to chattels is thus summarized in the Restatement of the Law of Torts, s. 218: “One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in the possession of another is liable for a trespass to such person if, but only if, (a) the chattel is impaired as to its condition, quality or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.” In comment (f) to clauses (a) and (b), it is pointed out that “the interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. . . . Sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.”

No claim was advanced at the trial that the dog Toby was in any way injured by the conduct of the plaintiff Elaine. Consequently she could not be held liable for a trespass to the dog. Consequently her conduct did not constitute a trespass which will prevent her recovery under the statute here invoked.

The finding that “Tobey was in possession of the defendant, Louis, within the meaning of the statute” must be set aside. The evidence was uncontradicted that the dog belonged to the defendant Jane, who testified as follows: “Q. Did your father object to having Toby in the house? A. Yes, he did. Q. Could he have thrown Toby out of the house? ... A. I suppose so. Q. Did he do it? A. No, he didn’t. Q. So he allowed Toby to live there? A. He told me I would be fully responsible for the dog, take care of him.” The evidence was also uncontradicted that Jane took care of the dog when she left for work in the morning and that thereafter he was in the care of her mother and that the defendant Louis had nothing whatever to do with the care of the dog. Under these circumstances it must be held that the defendant Louis was not the possessor of the dog Toby and therefore *321as to him the motion for judgment at the close of the evidence should have been granted. “Possession” as used in the statute implies the exercise of care, custody or control of the dog by one who though not the owner assumes to act in his stead. Here the actual care, custody and control of the dog was in the owner Jane Szybiak, who was of adult age, and she alone was responsible for the conduct of the animal. The statute furnishes no justification for imposing liability on the defendant Louis.

Judgment on the verdict against the defendant Jane.

Judgment for the defendant Louis.

In the judgment against the defendant Jane, all concurred. In the judgment for the defendant Louis, Duncan, J., concurred in the result: the others concurred.

MEMORANDUM OPINION AND ORDER

GRAHAM, District Judge.

This case presents novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.

Plaintiff CompuServe Incorporated (“CompuServe”) is one of the major national commercial online computer services. It operates a computer communication service through a proprietary nationwide computer network. In addition to allowing access to the extensive content available within its own proprietary network, CompuServe also provides its subscribers with a link to the much larger resources of the Internet. This allows its subscribers to send and receive electronic messages, known as “e-mail,” by the Internet. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. CompuServe has notified defendants that they are pi’ohibited from using its computer equipment to process and store the unsolicited e-mail and has requested that they terminate the practice. Instead, defendants have sent an increasing volume of email solicitations to CompuServe subscribers. CompuServe has attempted to employ technological means to block the flow of defendants’ e-mail transmissions to its computer equipment, but to no avail.

This matter is before the Court on the application of CompuServe for a preliminary injunction which would extend the duration of the temporary restraining order issued by this Court on October 24, 1996 and which would in addition prevent defendants from sending unsolicited advertisements to CompuServe subscribers.

For the reasons which follow, this Court holds that where defendants engaged in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited e-mail to plaintiffs proprietary computer equipment, where defendants continued such practice after repeated demands to cease and desist, and where defendants deliberately evaded plaintiffs affirmative efforts to protect its computer equipment from such use, plaintiff has a viable claim for trespass to personal property and is entitled to injunctive relief to protect its property.

I.

The Court will begin its analysis of the issues by acknowledging, for the purpose of providing a background, certain findings of *1018fact recently made by another district court in a case involving the Internet:

1. The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks----

2. Some networks are “closed” networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet.

3. The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has experienced extraordinary growth in recent years . . . . In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999.

4. Some of the computers and computer networks that make up the network are owned by governmental and public institutions, some are owned by non-profit organizations, and some are privately owned. The resulting whole is a decentralized, global medium of communications — or “cyberspace” — that links people, institutions, corporations, and governments around the world....

11. No single entity — academic, corporate, governmental, or non-profit — administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.

American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-832 (E.D.Pa.1996). In 1994, one commentator noted that “advertisements on the current Internet computer network are not common because of that network’s not-for-profit origins.” Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U.Pitt.L.Rev. 993, 1027 (1994). In 1997, that statement is no longer true.

Internet users often pay a fee for Internet access. However, there is no per-message charge to send electronic messages over the Internet and such messages usually reach their destination within minutes. Thus electronic mail provides an opportunity to reach a wide audience quickly and at almost no cost to the sender. It is not surprising therefore that some companies, like defendant Cyber Promotions, Inc., have begun using the Internet to distribute advertisements by sending the same unsolicited commercial message to hundreds of thousands of Internet users at once. Defendants refer to this as “bulk email,” while plaintiff refers to it as “junk email.” In the vernacular of the Internet, unsolicited e-mail advertising is sometimes referred to pejoratively as “spam.”1

CompuServe subscribers use CompuServe’s domain name “CompuServe.com” together with their own unique alpha-numezic identifier to form a distinctive e-mail mailing address. That address may be used by the subscriber to exchange electronic mail with any one of tens of millions of other Internet users who have electronic mail capability. E-mail sent to CompuServe subscribers is processed and stored on CompuServe’s proprietary computer equipment. Thereafter, it becomes accessible to CompuServe's subscribers, who can access CompuServe’s equipment and electronically retrieve those messages.

*1019Over the past several months, CompuServe has received many complaints from subscribers threatening to discontinue their subscription unless CompuServe prohibits electronic mass mailers from using its equipment to send unsolicited advertisements. CompuServe asserts that the volume of messages generated by such mass mailings places a significant burden on its equipment which has finite processing and storage capacity. CompuServe receives no payment from the mass mailers for processing their unsolicited advertising. However, CompuServe’s subscribers pay for their access to CompuServe’s services in increments of time and thus the process of accessing, reviewing and discarding unsolicited e-mail costs them money, which is one of the reasons for then-complaints. CompuServe has notified defendants that they are prohibited from using its proprietary computer equipment to process and store unsolicited e-mail and has requested them to cease and desist from sending unsolicited e-mail to its subscribers. Nonetheless, defendants have sent an increasing-volume of e-mail solicitations to CompuServe subscribers.

In an effort to shield its equipment from defendants’ bulk e-mail, CompuServe has implemented software programs designed to screen out the messages and block their receipt. In response, defendants have modified their equipment and the messages they send in such a fashion as to circumvent CompuServe’s screening software. Allegedly, defendants have been able to conceal the true origin of their messages by falsifying the point-of-origin information contained in the header of the electronic messages. Defendants have removed the “sender” information in the header of their messages and replaced it with another address. Also, defendants have developed the capability of configuring their computer servers to conceal their true domain name and appear on the Internet as another computer, further concealing the true origin of the messages. By manipulating this data, defendants have been able to continue sending messages to CompuServe’s equipment in spite of CompuServe’s protests and protective efforts.

Defendants assert that they possess the right to continue to send these communications to CompuServe subscribers. CompuServe contends that, in doing so, the defendants are trespassing upon its personal property.

II.

The grant or denial of a motion for preliminary injunction rests within the discretion of the trial court. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940). In determining whether a motion for preliminary injunction should be granted, a court must consider and balance four factors: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction. Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994); International Longshoremen’s Assoc. v. Norfolk S. Coip., 927 F.2d 900, 903 (6th Cir.1991). None of these individual factors constitute prerequisites that must be met for the issuance of a preliminary injunction, they are instead factors that are to be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). A preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a full trial on the merits. Indeed, “[a] party ... is not required to prove his case in full at a preliminary injunction hearing.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981).

III.

This Court shall first address plaintiff’s motion as it relates to perpetuating the temporary restraining order filed on October 24, 1996. That order enjoins defendants from:

(i) Using CompuServe accounts or CompuServe’s equipment or support services to send or receive electronic mail or messages *1020or in connection with the sending or receiving of electronic mail or messages;

(ii) Inserting any false reference to a CompuServe account or CompuServe equipment in any electronic message sent by Defendants; and

(iii) Falsely representing or causing their electronic mail or messages to bear the representation that any electronic mail or message sent by Defendants was sent by or originated from CompuServe or a CompuServe account.

(Temporary Restraining Order at 4).

As a general matter, the findings of this Court enunciated in its temporary restraining order are applicable to the request for preliminary injunction now at issue. The behavior described in subsections (ii) and (iii) of the temporary restraining order would be actionable as false representations or descriptions under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Also, the same behavior is actionable under the Ohio Deceptive Trade Practices Act, Ohio Rev.Code § 4165(B) and (D).

Defendants argue that the restrictions in the temporary restraining order are no longer necessary because defendants no longer have a CompuServe account. That being the case, a preliminary injunction perpetuating the proscribed activity articulated in subsection (i) of the temporary restraining order will present no hardship at all to defendants. Next, it does not appear that defendants would need to have a CompuServe account to perpetrate the proscribed acts articulated in subsections (ii) and (iii) of the temporary restraining order. Therefore, the fact that defendants no longer have an account with plaintiff does not vitiate the need which CompuServe has demonstrated for an injunction proscribing the acts set forth in those subsections.

For the foregoing reasons and the reasons articulated in the temporary restraining order issued by this Court, defendants Cyber Promotions, Inc. and its president Sanford Wallace are hereby enjoined from performing any of the acts therein described during the pendency of this litigation.

IV.

This Court will now address the second aspect of plaintiffs motion in which it seeks to enjoin defendants Cyber Promotions, Inc. and its president Sanford Wallace from sending any unsolicited advertisements to any electronic mail address maintained by CompuServe.

CompuServe predicates this aspect of its motion for a preliminary injunction on the common law theory of trespass to personal property or to chattels, asserting that defendants’ continued transmission of electronic messages to its computer equipment constitutes an actionable tort.

Trespass to chattels has evolved from its original common law application, concerning primarily the asportation of another’s tangible property, to include the unauthorized use of personal property:

Its chief importance now, is that there may be recovery ... for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.

Prosser & Keeton, Prosser and Keeton on Torts, § 14, 85-86 (1984).

The scope of an action for conversion recognized in Ohio may embrace the facts in the instant case. The Supreme Court of Ohio established the definition of conversion under Ohio law in Baltimore & O.R. Co. v. O’Donnell, 49 Ohio St. 489, 32 N.E. 476, 478 (1892) by stating that:

[I]n order to constitute a conversion, it was not necessary that there should have been an actual appropriation of the property by the defendant to its own use and benefit. It might arise from the exercise of a dominion over it in exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. If one take the property of another, for a temporary purpose only, in disregard of the owner’s right, it is a conversion. Either a wrongful taking, an assumption of ownership, an illegal use or *1021misuse, or a wrongful detention of chattels will constitute a conversion.

Id. at 497-98, 32 N.E. 476; see also Miller v. Uhl, 37 Ohio App. 276, 174 N.E. 591 (1929); Great American Mut. Indem. Co. v. Meyer, 18 Ohio App. 97 (1924); 18 O. Jur.3d, Conversion § 17. While authority under Ohio law respecting an action for trespass to chattels is extremely meager, it appears to be an actionable tort. See State of Ohio v. Herbert, 49 Ohio St.2d 88, 119, 358 N.E.2d 1090, 1106 (1976) (dissenting opinion) (“any workable cause of action would appear to be trespass to chattels”); see also Greenwald v. Kearns, 104 Ohio App. 473, 145 N.E.2d 462 (1957) (trespass on the rights of plaintiff in personal property is a precursor to an act in conversion); Simmons v. Dimitrouleas Wallcovering, Inc., No. 14804, 1995 WL 19136, at *2 (Ohio App. Jan.18,1995) (the court of appeals acknowledged that trespass to chattel claims were barred because those claims were dependent upon claimant’s ownership of the subject personal property); Klinebriel v. Smith, No. 94CA1641, 1996 WL 57947, at *2 (Ohio App. Feb.6, 1996) (where the court of appeals let stand a jury award on a “trespass against personal property” claim); Springfield Bank v. Caserta, 10 B.R. 57 (Bankr.S.D.Ohio 1981) (common law principles of trespass to chattels in Am.Jur.2d applied as controlling under Ohio law).

Both plaintiff and defendants cite the Restatement (Second) of Torts to support their respective positions. In determining a question unanswered by state law, it is appropriate for this Court to consider such sources as the restatement of the law and decisions of other jurisdictions. Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604-606 (6th Cir.1985) (where court considered positions expressed in the Restatement (Second) of Torts in interpreting Ohio’s principles of comparative negligence) Garrison v. Jervis B. Webb Co., 583 F.2d 258, 262 n. 6 (1978); see also Wright, Miller & Cooper, Federal Practice and Procedure, § 4507 (West 1996).

The Restatement § 217(b) states that a trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Restatement § 217, Comment e defines physical “intermeddling” as follows:

... intentionally bringing about a physical contact with the chattel. The actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another[.]

Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action. Thrifty-Tel, Inc., v. Bezenek, 46 Cal.App.4th 1559, 1567, 54 Cal.Rptr.2d 468 (1996); State v. McGraw, 480 N.E.2d 552, 554 (Ind.1985) (Indiana Supreme Court recognizing in dicta that a hacker’s unauthorized access to a computer was more in the nature of trespass than criminal conversion); and State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993) (computer hacking as the criminal offense of “computer trespass” under Washington law). It is undisputed that plaintiff has a possessory interest in its computer systems. Further, defendants’ contact with plaintiffs computers is clearly intentional. Although electronic messages may travel through the Internet over various routes, the messages are affirmatively directed to their destination.

Defendants, citing Restatement (Second) of Torts § 221, which defines “dispossession”, assert that not every interference with the personal property of another is actionable and that physical dispossession or substantial interference with the chattel is required. Defendants then argue that they did not, in this case, physically dispossess plaintiff of its equipment or substantially interfere with it. However, the Restatement (Second) of Torts § 218 defines the circumstances under which a trespass to chattels may be actionable:

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

(a) he dispossesses the other of the chattel, or

(b) the chattel is impaired as to its condition, quality, or value, or

(c) the possessor is deprived of the use of the chattel for a substantial time, or

(d) bodily harm is caused to the possessor, or harm is caused to some person or thing *1022in which the possessor has a legally protected interest.

Therefore, an interference resulting in physical dispossession is just one circumstance under which a defendant can be found liable. Defendants suggest that “[u]nless an alleged trespasser actually takes physical custody of the property or physically damages it, courts will not find the ‘substantial interference’ required to maintain a trespass to chattel claim.” (Defendant’s Memorandum at 13). To support this rather broad proposition, defendants cite only two cases which make any reference to the Restatement. In Glidden v. Szybiak, 95 N.H. 318, 63 A.2d 233 (1949), the court simply indicated that an action for trespass to chattels could not be maintained in the absence of some form of damage. The court held that where plaintiff did not contend that defendant’s pulling on her pet dog’s ears caused any injury, an action in tort could not be maintained. Id. 63 A.2d at 235. In contrast, plaintiff in the present action has alleged that it has suffered several types if injury as a result of defendants’ conduct. In Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 762 P.2d 609 (1988) the court held that a two-minute search of an individual’s truck did not amount to a “dispossession” of the truck as defined in Restatement § 221 or a deprivation of the use of the truck for a substantial time. It is clear from a reading of Restatement § 218 that an interference or intermed-dling that does not fit the § 221 definition of “dispossession” can nonetheless result in defendants’ liability for trespass. The Koepnick court did not discuss any of the other grounds for liability under Restatement § 218.

A plaintiff can sustain an action for trespass to chattels, as opposed to an action for conversion, without showing a substantial interference with its right to possession of that chattel. Thrifty-Tel, Inc., 46 Cal.App.4th at 1567, 54 Cal.Rptr.2d 468 (quoting Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (Cal.1946)). Harm to the personal property or diminution of its quality, condition, or value as a result of defendants’ use can also be the predicate for liability. Restatement § 218(b).

An unprivileged use or other intermeddling with a chattel which results in actual impairment of its physical condition, quality or value to the possessor makes the actor liable for the loss thus caused. In the great majority of cases, the actor’s intermeddling with the chattel impairs the value of it to the possessor, as distinguished from the mere affront to his dignity as possessor, only by some impairment of the physical condition of the chattel. There may, however, be situations in which the value to the owner of a particular type of chattel may be impaired by dealing with it in a manner that does not affect its physical condition.... In such a case, the intermeddling is actionable even though the physical condition of the chattel is not impaired.

The Restatement (Second) of Torts § 218, comment h. In the present case, any value CompuServe realizes from its computer equipment is wholly derived from the extent to which that equipment can serve its subscriber base. Michael Mangino, a software developer for CompuServe who monitors its mail processing computer equipment, states by affidavit that handling the enormous volume of mass mailings that CompuServe receives places a tremendous burden on its equipment. (Mangino Supp. Dec. at ¶ 12). Defendants’ more recent practice of evading CompuServe’s filters by disguising the origin of their messages commandeers even more computer resources because CompuServe’s computers are forced to store undeliverable e-mail messages and labor in vain to return the messages to an address that does not exist. (Mangino Supp. Dec. at ¶¶ 7-8). To the extent that defendants’ multitudinous electronic mailings demand the disk space and drain the processing power of plaintiffs computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants’ conduct.

Next, plaintiff asserts that it has suffered injury aside from the physical impact of defendants’ messages on its equipment. Restatement § 218(d) also indicates that recovery may be had for a trespass that causes *1023harm to something in which the possessor has a legally protected interest. Plaintiff asserts that defendants’ messages are largely unwanted by its subscribers, who pay incrementally to access their e-mail, read it, and discard it. Also, the receipt of a bundle of unsolicited messages at once can require the subscriber to sift through, at his expense, all of the messages in order to find the ones he wanted or expected to receive. These inconveniences decrease the utility of CompuServe’s e-mail service and are the foremost subject in recent complaints from CompuServe subscribers. Patrick Hole, a customer service manager for plaintiff, states by affidavit that in November 1996 CompuSeive received approximately 9,970 e-mail complaints from subscribers about junk e-mail, a figure up from approximately two hundred complaints the previous year. (Hole 2d Supp. Dec. at ¶ 4). Approximately fifty such complaints per day specifically reference defendants. (Hole Supp. Dec. at ¶ 3). Defendants contend that CompuServe subscribers are provided with a simple procedure to remove themselves from the mailing list. However, the removal procedure must be performed by the e-mail recipient at his expense, and some CompuServe subscribers complain that the procedure is inadequate and ineffectual. (See, e.g., Hole Supp. Dec. at ¶ 8).

Many subscribers have terminated their accounts specifically because of the unwanted receipt of bulk e-mail messages. (Hole Supp. Dec. at ¶ 9, Hole 2d Supp. Dec. at ¶ 6). Defendants’ intrusions into CompuServe’s computer systems, insofar as they harm plaintiffs business reputation and goodwill with its customers, are actionable under Restatement § 218(d).

The reason that the tort of trespass to chattels requires some actual damage as a prima facie element, whereas damage is assumed where there is a trespass to real property, can be explained as follows:

The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another’s chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.

Restatement (Second) of Torts § 218, Comment e (emphasis added). Plaintiff CompuServe has attempted to exercise this privilege to protect its computer systems. However, defendants’ persistent affirmative efforts to evade plaintiffs security measures have circumvented any protection those self-help measures might have provided. In this case CompuServe has alleged and supported by affidavit that it has suffered several types of injury as a result of defendants’ conduct. The foregoing discussion simply underscores that the damage sustained by plaintiff is sufficient to sustain an action for trespass to chattels. However, this Court also notes that the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should be exhausted before legal action is proper.

Under Restatement § 252, the owner of personal property can create a privilege in the would-be trespasser by granting consent to use the property. A great portion of the utility of CompuServe’s e-mail service is that it allows subscribers to receive messages from individuals and entities located anywhere on the Internet. Certainly, then, there is at least a tacit invitation for anyone on the Internet to utilize plaintiffs computer *1024equipment to send e-mail to its subscribers.2 Buchanan Marine, Inc. v. McCormack Sand Co., 743 F.Supp. 139 (E.D.N.Y.1990) (whether there is consent to community use is a material issue of fact in an action for trespass to chattels). However, in or around October 1995, CompuServe employee Jon Schmidt specifically told Mr. Wallace that he was “prohibited from using CompuServe’s equipment to send his junk e-mail messages.” (Schmidt Dec. at ¶ 5). There is apparently some factual dispute as to this point, but it is clear from the record that Mr. Wallace became aware at about this time that plaintiff did not want to receive messages from Cyber Promotions and that plaintiff was taking-steps to block receipt of those messages. (Transcript of December 15, 1996 Hearing at 81-86).

Defendants argue that plaintiff made the business decision to connect to the Internet and that therefore it cannot now successfully maintain an action for trespass to chattels. Them argument is analogous to the argument that because an establishment invites the public to enter its property for business purposes, it cannot later restrict or revoke access to that property, a proposition which is erroneous under Ohio law. See, e.g., State v. Carriker, 5 Ohio App.2d 255, 214 N.E.2d 809 (1964) (the law in Ohio is that a business invitee’s privilege to remain on the premises of another may be revoked upon the reasonable notification to leave by the owner or his agents); Allstate Ins. Co. v. U.S. Associates Realty, Inc., 11 Ohio App.3d 242, 464 N.E.2d 169 (1983) (notice of express restriction or limitation on invitation turns business invitee into trespasser). On or around October 1995, CompuServe notified defendants that it no longer consented to the use of its proprietary computer equipment. Defendants’ continued use thereafter was a trespass; Restatement (Second) of Torts §§ 252 and 892A(5); see also Restatement (Second) of Torts § 217, Comment f (“The actor may commit a new trespass by continuing an intermeddling which he has already begun, with or without the consent of the person in possession. Such intermeddling may persist after the other’s consent, originally given, has been terminated.”); Restatement (Second) of Torts § 217, Comment g.

Further, CompuServe expressly limits the consent it grants to Internet users to send e-mail to its proprietary computer systems by denying unauthorized parties the use of CompuServe equipment to send unsolicited electronic mail messages. (Koleh-mainen Dec. at ¶ 2). This policy statement, posted by CompuServe online, states as follows:

CompuServe is a private online and communications services company. CompuServe does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail. If an unauthorized party attempts to send unsolicited messages to e-mail addresses on a CompuServe service, CompuServe will take appropriate action to attempt to prevent those messages from being processed by CompuServe. Violations of CompuServe’s policy prohibiting unsolicited e-mail should be reported to....

Id. at ¶¶ 2 and 3. Defendants Cyber Promotions, Inc. and its president Sanford Wallace have used plaintiffs equipment in a fashion that exceeds that consent. The use of personal property exceeding consent is a trespass. City of Amsterdam v. Daniel Goldreyer, Ltd., 882 F.Supp. 1273 (E.D.N.Y.1995); Restatement (Second) of Torts § 256. It is arguable that CompuServe’s policy statement, insofar as it may serve as a limitation upon the scope of its consent to the use of its computer equipment, may be insufficiently communicated to potential third-party users when it is merely posted at some location on the network. However, in the present case the record indicates that defendants were actually notified that they were using CompuServe’s equipment in an unacceptable manner. To prove that a would-be trespasser acted with the intent required to support liability in tort it is crucial that defendant be placed on notice that he is trespassing.

*1025As a general matter, the public possesses a privilege to reasonably use the facilities of a public utility, Restatement (Second) of Torts § 259, but Internet service providers have been held not to be common carriers. Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361 (N.D.Cal.1995). The definition of public utility status under Ohio law was recently articulated in A & B Refuse Disposers, Inc. v. Bd. Of Ravenna Township Trustees, 64 Ohio St.3d 385, 596 N.E.2d 423 (1992). The Ohio Supreme Court held that the determination of whether an entity is a “public utility” requires consideration of several factors relating to the “public service” and “public concern” characteristics of a public utility. Id. 596 N.E.2d at 426. The public service characteristic contemplates an entity which devotes an essential good or service to the general public which the public in turn has a legal right to demand or receive. Id. at 425. CompuServe’s network, Internet access and electronic mail services are simply not essential to society. There are many alternative forms of communication which are customarily used for the same purposes. Further, only a minority of society at large has the equipment to send and receive e-mail messages via the Internet, and even fewer actually do. The second characteristic of a public utility contemplates an entity which conducts its operations in such manner as to be a matter of public concern, that is, a public utility normally occupies a monopolistic or ogopolistic position in the relevant marketplace. Id. at 425-426. Defendants estimate that plaintiff serves some five million Internet users worldwide. However, there are a number of major Internet service providers that have very large subscriber bases, and with a relatively minor capital investment, anyone can acquire the computer equipment necessary to provide Internet access services on a smaller scale. Furthermore, Internet users are not a “captive audience” to any single service provider, but can transfer from one service to another until they find one that best suits their needs. Finally, the Ohio Supreme Court made clear that a party asserting public utility status is required to support that assertion with evidence going to the relevant aforementioned factors. Id. 596 N.E.2d at 427. Defendants have not argued that CompuServe is a public utility, much less produced evidence tending to support such a conclusion. Therefore, CompuServe is not a public utility as that status is defined under Ohio law and defendants can not be said to enjoy a special privilege to use CompuServe’s proprietary computer systems.

In response to the trespass claim, defendants argue that they have the right to continue to send unsolicited commercial e-mail to plaintiffs computer systems under the First Amendment to the United States Constitution. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” The United States Supreme Court has recognized that “the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.” Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976). Indeed, the protection of the First Amendment is not a shield against “merely private conduct.” Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557, -, 115 S.Ct. 2338, 2344, 132 L.Ed.2d 487 (1995) (citation omitted).

Very recently, in an action filed by Cyber Promotions, Inc. against America Online, Inc. (“AOL”) the United States District Court for the Eastern District of Pennsylvania held that AOL, a company selling services that are similar to those of CompuServe, is private actor. Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp. 436, 443-44 (E.D.Pa.1996). That case involved the question of whether Cyber Promotions had the First Amendment right to send unobstructed e-mail to AOL subscribers. The court held that Cyber Promotions had no such right and that, inter alia, AOL was not exercising powers that are traditionally the exclusive prerogative of the state, such as where a private company exercises municipal powers by running a company town. Id. at 442-43; Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). *1026This Court agrees with the conclusions reached by the United States District Court for the Eastern District of Pennsylvania.

In the present action, CompuServe is a private company. Moreover, the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor. Rotunda & Nowak, Treatise on Constitutional Law § 16.3, 546 (West 1992). Defendants do not argue that CompuServe is anything other than a private actor. Instead, defendants urge that because CompuServe is so intimately involved in this new medium it might be subject to some special form of regulation. Defendants cite Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), and Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), which stand for the prop osition that when a private actor has a certain quantum of control over a central avenue of communication, then the First Amendment might not prevent the government from enacting legislation requiring public access to private property. No such legislation yet exists that is applicable to CompuServe. Further, defendants’ discussion concerning the extent to which the Internet may be regulated (or should be regulated) is irrelevant because no government entity has undertaken to regulate the Internet in a manner that is applicable to this action. Indeed, if there were some applicable statutory scheme in place this Court would not be required to apply paradigms of common law to the case at hand.

In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), protestors of the Vietnam War sought to pass out written materials in a private shopping center. Even though the customers of the shopping center were the intended recipients of the communication, the Supreme Court held that allowing the First Amendment to trump private property rights is unwarranted where there are adequate alternative avenues of communication. Id. at 567, 92 S.Ct. at 2228. The Supreme Court stated that:

Although ... the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited, guest may exercise general rights of free speech on property pnvately owned and used nondiscriminatorily for private purposes only.

Id. at 567-68, 92 S.Ct. at 2228 (emphasis added). Defendants in the present action have adequate alternative means of communication available to them. Not only are they free to send e-mail advertisements to those on the Internet who do not use CompuServe accounts, but they can communicate to CompuServe subscribers as well through online bulletin boards, web page advertisements, or facsimile transmissions, as well as through more conventional means such as the U.S. mail or telemarketing. Defendants’ contention, referring to the low cost of the electronic mail medium, that there are no adequate alternative means of communication is unpersuasive. There is no constitutional requirement that the incremental cost of sending massive quantities of unsolicited advertisements must be borne by the recipients. The legal concept in Lloyd that private citizens are entitled to enforce laws of trespass against would-be communicators is applicable to this case.

Defendants assert that CompuServe has assumed the role of a postmaster, to whom all of the strictures of the First Amendment apply, and that to allow it to enjoy a legally protected interest in its computer equipment in this context is to license a form of censorship which violates the First Amendment. However, such an assertion must be accompanied by a showing that CompuServe is a state actor. As earlier mentioned, defendants have neither specifically argued this point nor provided any evidence to support it. CompuServe is entitled to restrict access to its private property.

“The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses.” Breard v. City of Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951) (upholding local ordinances banning commercial solicitations over First Amendment objections) (footnote omitted). In Rowan v. U.S. Post Office Dept., 397 U.S. *1027728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) the United States Supreme Court held that the First Amendment did not forbid federal legislation that allowed addressees to remove themselves from mailing lists and stop all future mailings. The Court stated that the “mailer’s right to communicate must stop at the mailbox of an unreceptive addressee — [t]o hold less would be to license a form of trespass[.]” Id. at 736-37, 90 S.Ct. at 1490.

In Tillman v. Distribution Sys. Of America, Inc., 224 A.D.2d 79, 648 N.Y.S.2d 630 (1996) the plaintiff complained that the defendant continued to throw newspapers on his property after being warned not to do so. The court held that the defendant newspaper distributor had no First Amendment right to continue to throw newspapers onto the property of the plaintiff. After discussing the Supreme Court cases of Rowan and Breard, supra, the court pointed out that:

The most critical and fundamental distinction between the cases cited above, on the one hand, and the present case, on the other, is based on the fact that here we are not dealing with a government agency which seeks to preempt in some way the ability of a publisher to contact a potential reader; rather, we are dealing with a reader who is familiar with a publisher’s product, and who is attempting to prevent the unwanted dumping of this product on his property. None of the cases cited by the defendants stands for the proposition that the Free Speech Clause prohibits such a landowner from resorting to his common-law remedies in order to prevent such unwanted dumping. There is, in our view, nothing in either the Federal or State Constitutions which requires a landowner to tolerate a trespass whenever the trespasser is a speaker, or the distributor of written speech, who is unsatisfied with the fora which may be available on public property, and who thus attempts to carry his message to private property against the will of the owner.

Id. 648 N.Y.S.2d at 635. The court concluded, relying on Lloyd, supra, that the property rights of the private owner could not be overwhelmed by the First Amendment. Id. 648 N.Y.S.2d at 636.

In the present case, plaintiff is physically the recipient of the defendants’ messages and is the owner of the property upon which the transgression is occurring. As has been discussed, plaintiff is not a government agency or state actor which seeks to preempt defendants’ ability to communicate but is instead a private actor trying to tailor the nuances of its service to provide the maximum utility to its customers.

Defendants’ intentional use of plaintiffs proprietary computer equipment exceeds plaintiffs consent and, indeed, continued after repeated demands that defendants cease. Such use is an actionable trespass to plaintiffs chattel. The First Amendment to the United States Constitution provides no defense for such conduct.

Plaintiff has demonstrated a likelihood of success on the merits which is sufficient to warrant the issuance of the preliminary injunction it has requested.

As already discussed at some length, plaintiff has submitted affidavits supporting its contention that it will suffer irreparable harm without the grant of the preliminary injunction. As an initial matter, it is important to point out that the Court may accept affidavits as evidence of irreparable harm. Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281, 1287 (8th Cir.1974); see generally Wright, Miller & Kane, Federal Practice and Procedure § 2949, at 218-220 (West 1995). Defendants suggest that there are other reasons why CompuServe subscribers terminate their accounts, but do not offer any evidence which contradicts plaintiffs affidavits.

Normally, a preliminary injunction is not appropriate where an ultimate award of monetary damages will suffice. Montgomery v. Carr, 848 F.Supp. 770 (S.D.Ohio 1993). However, money damages are only adequate if they can be reasonably computed and collected. Plaintiff has demonstrated that defendants’ intrusions into their computer systems harm plaintiffs business reputation and goodwill. This is the sort of injury that warrants the issuance of a preliminary injunction because the actual loss *1028is impossible to compute. Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir.1992); Economou v. Physicians Weight Loss Centers of America, 756 F.Supp. 1024 (N.D.Ohio 1991).

Plaintiff has shown that it will suffer irreparable harm without the grant of the preliminary injunction.

It is improbable that granting the injunction will cause substantial harm to defendant. Even with the grant of this injunction, defendants are free to disseminate their advertisements in other ways not constituting trespass to plaintiffs computer equipment. Further, defendants may continue to send electronic mail messages to the tens of millions of Internet users who are not connected through CompuServe’s computer systems.

Finally, the public interest is advanced by the Court’s protection of the common law rights of individuals and entities to their personal property. Defendants raise First Amendment concerns and argue that an injunction will adversely impact the public interest. High volumes of junk e-mail devour computer processing and storage capacity, slow down data transfer between computers over the Internet by congesting the electronic paths through which the messages travel, and cause recipients to spend time and money wading through messages that they do not want. It is ironic that if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk. In light of the foregoing discussion, those arguments are without merit. Further, those subscribing to CompuServe are not injured by the issuance of this injunction. Plaintiff has made a business decision to forbid Cyber Promotions and Mr. Wallace from using its computers to transmit messages to CompuServe subscribers. If CompuServe subscribers are unhappy with that decision, then they may make that known, perhaps by terminating their accounts and transferring to an Internet service provider which accepts unsolicited e-mail advertisements. That is a business risk which plaintiff has assumed.

Having considered the relevant factors, this Court concludes that the preliminary injunction that plaintiff requests is appropriate.

V.

Based on the foregoing, plaintiffs motion for a preliminary injunction is GRANTED. The temporary restraining order filed on October 24, 1996 by this Court is hereby extended in duration until final judgment is entered in this case. Further, defendants Cyber Promotions, Inc. and its president Sanford Wallace are enjoined from sending any unsolicited advertisements to any electronic mail address maintained by plaintiff CompuServe during the pendency of this action.

It is so ORDERED.

Main, J.

This action was brought by the administrator of the estate of Hamilton I. Cartwright, deceased, who died as the result of a blow received in a prize fight. To the amended complaint, which will be referred to as the complaint, each of the defendants interposed a demurrer, which was sustained. The *633plaintiff refused to plead further and elected to stand upon the complaint. A judgment was entered dismissing the action, from which the plaintiff appeals.

February 5, 1929, Hamilton I. Cartwright and Cecil Geysel engaged in a prize fight in the city of Seattle, during which Cartwright received a blow which caused his death. In the complaint there are no facts showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

The controlling question is whether the action can be maintained for wrongful death when the encounter, though unlawful, was entered into with the consent of both parties. Section 2556, Rem. Comp. Stat., makes prize fighting unlawful, and provides that one engaging therein shall be guilty of a gross misdemeanor, with a proviso which is not here material.

The administrator has no greater rights pertaining to a recovery of damages than would the deceased have had, had he lived and brought an action for any injuries that he may have received. Ostheller v. Spokane & Inland Empire R. Co., 107 Wash. 678, 182 Pac. 630.

Upon the question stated, the adjudicated cases, as well as the text writers, are in conflict. One line supports what is known as the majority rule, and the other, the minority. The majority rule has been stated as follows:

“Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other.”

*634This rule is supported by the cases of Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853; Adams v. Waggoner, 33 Ind. 531, 5 Am. St. 230; Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 185, 4 Am. St. 535; McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168; Morris v. Miller, 83 Neb. 218, 119 N. W. 458, 131 Am. St. 636, 20 L. R. A. (N. S.) 907; Colby v. McClendon, 85 Okl. 293, 206 Pac. 207, 30 A. L. R. 196; Royer v. Belcher, 100 W. Va. 694, 131 S. E. 556; Littledike v. Wood, 69 Utah 323, 255 Pac. 172.

The minority rule has been stated as follows:

“Where parties engage in a mutual combat in anger, the act of each is unlawful and relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or malicious intent to do serious injury upon the part of the defendant.”

The cases of White v. Whittall, 113 Mich. 493, 71 N. W. 1118; Smith v. Simon, 69 Mich. 481, 37 N. W. 548; McNeil v. Choate, 197 Ky. 682, 247 S. W. 955; Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852; Wright v. Starr, 42 Nev. 441, 179 Pac. 877, support this rule.

With reference to the two rules, after reviewing the authorities, the supreme court of Oklahoma, in the comparatively recent case of Colby v. McClendon, 85 Okl. 293, 206 Pac. 207, said:

“This court has never passed upon the question, but it seems that the majority rule is supported by the best reasoning. We think it should be followed in a case where the parties enter into a mutual combat with deadly weapons. The minority rule is announced in cases where the injury resulted from fist fights, although the case of Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852, was where parties were engaged in a cutting scrape. We think it would be against public policy to apply the minority rule in a case where persons enter into a mutual combat with deadly weapons.”

In each of the cases which support the majority rule, the combat was entered into in anger, with a malicious *635intent to seriously injure, and in some of them the question of excessive force was present as hearing upon the question of damages. In the cases which support the minority rule, the encounter, or fist fight, as it may be called, was entered into in anger, from which it would be necessarily inferred that there was an intent to do injury.

The majority rule carries into a civil action, where one party sues the other for damages for something which has been done in violation of positive law, the principle applied in criminal prosecutions by the state to the effect that the consent of one or both of the parties does not prevent such a prosecution. The minority rule does not apply this principle when a civil action is brought by one of the parties against the other for damages which have been sustained in a combat consented to by both parties, but which was in violation of positive law. The authorities supporting the majority rule recognize that if the thing done is not one prohibited by positive law, for which a penalty is imposed, then consent is a complete defense in a civil action for damages. The majority rule is an exception to two generally well recognized and accepted principles of law: (a) That one who has consented to suffer a particular invasion of his private right has no right to complain; and (b) that no one shall profit by his own wrongdoing. The minority rule recognizes and applies these principles.

The facts in the case now before us do not bring it within the authorities supporting the majority rule, because here there are no facts which show anger, malicious intent to injure, or excessive force. It may be stated that the facts of this case do not contain one element of the minority rule, that of anger. It is unnecessary, as we view it, in the present case to adopt either rule. It is sufficient to say that in our opinion *636one who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport. To enforce the criminal statute against prize fighting, it is not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent. This view is supported by the rule tentatively adopted by the American Law Institute in the Restatement of the Law of Torts, and is discussed in American Institute Treatise No. 1 (a) Supporting Restatement No. 1, Torts, chapter V, § 75, beginning at page 172, 1925. In part it is there said:

“Notwithstanding the numerical weight of authority against the view that an assent to a breach of the peace is a legally effective consent to such invasions of interest of personality as are involved therein the minority view is preferred for the following reasons;

“1. The majority view is obviously an exception to the general principle that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain if another acts upon his consent so given. The very nature of rights of personality, which are in freedom to dispose of one’s interests of personality as one pleases, fundamentally requires this to be so. There is a further principle, applicable not only in tort law but throughout the whole field of law, and perhaps more conspicuously in other subjects, to the effect that no man shall profit by his own wrongdoing.

“The majority view is an exception to both of these two fundamental principles. Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his person and to determine by whom and how it shall be touched has not been invaded. And it is equally clear that if he has so expressed his consent to the blow that, were he not party to a breach of the peace, his assent would be an operative consent and so bar his liability, he is *637profiting by tbe illegality of his conduct if because he is party to the breach of the peace he gains a right of action, which but for his criminal joinder therein he would not have had.

“The majority view, being, as it is, an exception to two such otherwise universal principles of law, can be sustained only if it is founded upon authorities which were not only based upon sound reason when announced but which are based upon reasons which still remain sound and convincing, or if the exception is one which is required to carry into effect some weighty public policy. ’’

In the opinion in the case of Milam v. Milam, 46 Wash. 468, 90 Pac. 595, neither of the above rules was mentioned or discussed, and we do not regard that case as controlling. There is some language in it which leads to the belief that it was decided on the theory of excessive force.

The appellant cites a number of cases which hold that consent to an abortion by a patient is no defense to a subsequent action for damages against the doctor for performing the operation in a negligent manner, but if that be the rule in such cases it is not necessarily applicable to the facts now before us. We here distinctly do not express any opinion upon whether consent to an abortion precludes a right of recovery for the negligent act of the doctor in performing the operation.

The judgment will be affirmed.

Mitchell, O. J., Parker, Tolmah, Beals, Millard, and Beeler, JJ., concur.

Holcomb, J.

(dissenting) — I am unable to concur in the prevailing opinion because it is contrary to the better reasoning as stated in what is called the majority rule, is contrary to public policy, and sets a bad precedent.

*638The first error contained in the prevailing opinion is that there are no facts in the complaint showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force. If excessive force be necessary as an element of recovery in a case where a mutual combat was voluntarily engaged in, the complaint alleges it in the following language:

. . . the said Cecil Geysel, having engaged and while engaged in the said unlawful encounter with the said Hamilton I. Cartwright, continued fighting with the said Hamilton I. Cartwright and did unlawfully and unjustifiably assault, strike, beat and injure the said Hamilton I. Cartwright, and did strike the said Hamilton I. Cartwright so cruelly and with such force and violence as to knock him down and cause him to fall upon the floor, from which said assault, striking, beating and blows, and from the injuries received from the falling the said Hamilton I. Cartwright died. ’’

The foregoing certainly was an allegation of excessive force and brings the case squarely under our own decision in Milam v. Milam, 46 Wash. 468, 90 Pac. 595, which is distinguished in the majority opinion upon the ground that it was decided on the theory of excessive force. The principal contention in the Milam case, as shown by the briefs filed therein, was that the affray in that case was mutual and voluntary and, therefore, the act committed was not done against the will of the party assaulted. Unless this court intended to deny that proposition, there could be no recovery even when excessive force appears, just as in the present case.

For once, I am unable to agree with either the reasoning or conclusions arrived at tentatively by the American Law Institute in its Restatement of the Law, reference to which is made in the majority opinion, as being the better reasoning and the better principle to *639follow in deciding this case. I admit that ancient precedents should not govern where they are bad. One ancient case criticized in the Restatement, supra, was that of Matthew v. Ollerton, Comerbach 218, 90 Eng. Reprint 438, which is said to be a mere dictum stating:

“. . . if a man license another to beat him, such license is void as it is against the peace.”

This dictum, it is said, was followed in a more modern case, Boulter v. Clark, Buffer’s Nisi Prius, 16, where the presiding judge ruled that, the fighting being unlawful, the consent to fight, if proved, would not bar the plaintiff.

Although that may be but dictum and of faulty, human origin, there is ancient and Divine authority in the Mosaic law:

“And if men strive together, and one smite another, with a stone, or with his fist and he die not but keepeth his bed; if he rise again, and walk about upon his staff, then he that smote him be quit; only he shall pay for the loss of his time and shall cause him to be thoroughly healed.” Exodus XXI:18, 19.

See, also, Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230, McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853, Littledike v. Wood; 69 Utah 323, 255 Pac. 172.

Our statute, Rem. Comp. Stat., § 2556, makes prize fighting unlawful. Hence, there could be no lawful consent to such a combat. Physical combats are against the peace, anyway. Had it been a duel, it would have been unlawful, and consent to fight a duel would not prevent recovery by either those injured, on the ground of excessive force, or the heirs or personal representatives of those injured.

The reasoning of Judge Cooley is, to my mind, greatly superior to the reasoning employed in the Re*640statement of the Law on Torts. Judge Cooley reasons as follows, Cooley on Torts (3d Ed.), p. 282:

“It is implied, in an assault or battery, that it is committed against the assent of the person assaulted; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away; it would be criminal in him to take it, and equally criminal in any one else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault.

“But suppose, in the duel one is not killed, but only wounded; may he have an action against his adversary for this injury? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non fit injuria. But if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a consent which the law forbids can be accepted in law as a legal protection?

“Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. . .

“But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here, one being the State, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not de*641priving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other.”

See, also, 1 Jaggard on Torts, p. 203, to the same effect.

I am convinced the complaint stated a cause of action under the correct principles of law and the judgment should he reversed.

Fullerton, J., concurs with Holcomb, J.

WILLIAM E. DOYLE, Circuit Judge.

The question in this case is whether in a regular season professional football game an injury which is inflicted by one professional football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional striking of a blow during the game.

The injury occurred in the course of a game between the Denver Broncos and the Cincinnati Bengals, which game was being played in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was the recipient of the injury and the Bengals’ offensive back, Charles “Booby” Clark, inflicted the blow which produced it.

By agreement the liability question was determined by the United States District Court for the District of Colorado without a jury. The judge resolved the liability issue in favor of the Cincinnati team and Charles Clark. Consistent with this result, final judgment was entered for Cincinnati and the appeal challenges this judgment. In essence the trial court’s reasons for rejecting plaintiff’s claim were that professional football is a species of warfare and that so much physical force is tolerated and the magnitude of the force exerted is so great that it renders injuries not actionable in *519court; that even intentional batteries are beyond the scope of the judicial process.

Clark was an offensive back and just before the injury he had run a pass pattern to the right side of the Denver Broncos’ end zone. The injury flowed indirectly from this play. The pass was intercepted by Billy Thompson, a Denver free safety, who returned it to mid-field. The subject injury occurred as an aftermath of the pass play.

As a consequence of the interception, the roles of Hackbart and Clark suddenly changed. Hackbart, who had been defending, instantaneously became an offensive player. Clark, on the other hand, became a defensive player. Acting as an offensive player, Hackbart attempted to block Clark by throwing his body in front of him. He thereafter remained on the ground. He turned, and with one knee on the ground, watched the play following the interception.

The trial court’s finding was that Charles Clark, “acting out of anger and frustration, but without a specific intent to injure stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff’s head and neck with sufficient force to cause both players to fall forward to the ground.”' Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands and the offensive and defensive teams of each had been substituted. Clark testified at trial that his frustration was brought about by the fact that his team was losing the game.

Due to the failure of the officials to view the incident, a foul was not called. However, the game film showed very clearly what had occurred. Plaintiff did not at the time report the happening to his coaches or to anyone else during the game. However, because of the pain which he experienced he was unable to play golf the next day. He did not seek medical attention, but the continued pain caused him to report this fact and the incident to the Bronco trainer who gave him treatment. Apparently he played on the specialty teams for two successive Sundays, but after that the Broncos released him on waivers. (He was in his thirteenth year as a player.) He sought medical help and it was then that it was discovered by the physician that he had a serious neck fracture injury.

Despite the fact that the defendant Charles Clark admitted that the blow which had been struck was not accidental, that it was intentionally administered, the trial court ruled as a matter of law that the game of professional football is basically a business which is violent in nature, and that the available sanctions are imposition of penalties and expulsion from the game. Notice was taken of the fact that many fouls are overlooked; that the game is played in an emotional and noisy environment; and that incidents such as that here complained of are not unusual.

The trial court spoke as well of the unreasonableness of applying the laws and rules which are a part of injury law to the game of professional football, noting the unreasonableness of holding that one player has a duty of care for the safety of others. He also talked about the concept of assumption of risk and contributory fault as applying and concluded that Hackbart had to recognize that he accepted the risk that he would be injured by such an act.

I.

THE ISSUES AND CONTENTIONS

1. Whether the trial court erred in ruling that as a matter of policy the principles of law governing the infliction of injuries should be entirely refused where the injury took place in the course of the game.

2. Did the trial court err in concluding that the employee was not vicariously liable for an activity for which he had not received express authorization?

3. Whether it was error to receive in evidence numerous episodes of violence which were unrelated to the case at bar, that is, incidents of intentional infliction of injury which occurred in other games.

4. Whether it was error for the trial court to receive in evidence unrelated acts on the part of the plaintiff.

*5205. The final issue is whether the evidence justifies consideration by the court of the issue of reckless conduct as it is defined in A.L.I. Restatement of the Law of Torts Second, § 500, because (admittedly) the assault and battery theory is not available because that tort is governed by a one-year statute of limitations.

II.

WHETHER THE EVIDENCE SUPPORTED THE JUDGMENT

The evidence at the trial uniformly supported the proposition that the intentional striking of a player in the head from the rear is not an accepted part of either the playing rules or the general customs of the game of professional football. The trial court, however, believed that the unusual nature of the case called for the consideration of underlying policy which it defined as common law principles which have evolved as a result of the case to case process and which necessarily affect behavior in various contexts. From these considerations the belief was expressed that even intentional injuries incurred in football games should be outside the framework of the law. The court recognized that the potential threat of legal liability has a significant deterrent effect, and further said that private civil actions constitute an important mechanism for societal control of human conduct. Due to the increase in severity of human conflicts, a need existed to expand the body of governing law more rapidly and with more certainty, but that this had to be accomplished by legislation and administrative regulation. The judge compared football to coal mining and railroading insofar as all are inherently hazardous. Judge Matsch said that in the case of football it was questionable whether social values would be improved by limiting the violence.

Thus the district court’s assumption was that Clark had inflicted an intentional blow which would ordinarily generate civil liability and which might bring about a criminal sanction as well, but that since it had occurred in the course of a football game, it should not be subject to the restraints of the law; that if it were it would place unreasonable impediments and restraints on the activity. The judge also pointed out that courts are ill-suited to decide the different social questions and to administer conflicts on what is much like a battlefield where the restraints of civilization have been left on the sidelines.

We are forced to conclude that the result reached is not supported by evidence.

III.

WHETHER INTENTIONAL INJURY IS ALLOWED BY EITHER WRITTEN RULE OR CUSTOM

Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.

Contrary to the position of the court then, there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.

*521Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:

All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.

Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.

The general customs of football do not approve the intentional punching or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation.

IV.

WAS IT LEGALLY JUSTIFIABLE FOR THE TRIAL COURT TO HOLD, AS A MATTER OF POLICY, THAT JURISDICTION SHOULD NOT BE ASSUMED OVER THE CASE IN VIEW OF THE FACT THAT IT AROSE OUT OF A PROFESSIONAL FOOTBALL GAME?

A. Whether the theory of judicial restraint applies.

It is a well-settled principle of federal jurisdiction that where a federal court does not have a discretion to accept or reject jurisdiction, if it does not have jurisdiction, it will not take it; but it is ruled, on the other hand, that if it has jurisdiction it must take it. This principle has been expressed many times with perhaps one of the best expressions being found in an early opinion, that of Mr. Chief Justice Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821):

It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

Much more recently the Supreme Court in the case of Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382 (1909), speaking through Mr. Justice Peckham, stated that where a federal court is appealed to in the case over which it has by law jurisdiction, it is its duty to take such jurisdiction.

They assume to criticise that court [United States District Court for the Southern District of New York] for taking jurisdiction of this case, as precipitate, as if it were a question of discretion or comity, whether or not that court should have heard the ease. On the contrary, there was no discretion or comity about it. When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction (Cohens v. Virginia, [19 U.S. 264,] 6 Wheat., 264, 404, 5 L.Ed. 257), and, in taking it, that court cannot be truthfully spoken of as precipitate in its con*522duct. That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.

Mr. Justice Peckham expressed the view that the rule is based on the right of a party plaintiff to choose a federal court where there is a choice.

There are some recognized limitations on federal courts assuming jurisdiction, but none of these permit a court to exercise its own discretion on the subject. One example of limitation is the political question. Another is the doctrine of abstention, which is exercised where a state court is involved and deference is exercised in favor of the state court. See, for example, Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). These, however, are the exceptions and not the rule as was pointed out in the cited case. Abstention itself is limited. It does not contemplate that federal courts abdicate their jurisdiction. See American Trial Lawyers Association v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973).

The Supreme Court has been known to refuse to exercise its original jurisdiction. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). At the same time, it reiterated the traditional rule that where a federal court has jurisdiction it must exercise it. It is not at liberty to refuse to do so unless it is in accordance with one of the principles mentioned above. Original jurisdiction in the Supreme Court allows much more leeway to refusing acceptance of jurisdiction than does an inferior federal court.

It is clear that none of the grounds for refusing access to the courts are present in the instant case. One writer, Professor Keeton, has said that courts properly participate in the evolution and development of common law. We submit that this approach is at odds with refusing to accept the case. See Keeton, Creative Continuity of Tort Law, 75 Harv.L.Rev. 463 (1962). See also Widener, Some Random Thoughts on Judicial Restraint, 31 Wash, and Lee L.Rev. 505 (1974).1

The spirit and the letter of the decisions are that if jurisdiction to hear or determine cases exists, as it does in the case at bar, the cause is to be tried on its merits.

The position which was adopted by the trial court in this case was then directly contrary to all of the law dealing with the exercise of jurisdiction by federal courts.

B. Whether diversity jurisdiction provides any discretion.

It is of high importance to note the fact that in a diversity of citizenship case the federal district court sits as a state trial court and applies the law of the forum state. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In this highly important decision the Supreme Court, through the late Justice Brandeis, overruled the early case of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which had allowed federal trial courts to apply their own common law. The rule was established in Erie that the law of the state in which the court sat had to be applied to the diversity case. In rejecting the principle that the federal court could apply its own common law rule, the Court rejected the idea that a transcendental body of law existed for federal courts. It was said that there was no backup federal authority in the federal government to provide this power for federal courts; that the authoritative governing force was in the state courts.

*523Justice Holmes was quoted by Justice Brandeis (the author of Erie) for the proposition that the authority in this diversity area must come from the state. A second basis for disapproval of federal authority or ability to innovate in diversity cases also originated with Justice Holmes, who said that the Swift v. Tyson rule was an unconstitutional assumption of power by the courts of the United States. The Supreme Court in Erie thus declared that in applying the theory of Swift v. Tyson, the Supreme Court and lower federal courts had invaded rights protected by the Constitution of the United States and the several states.

So, applying the Erie doctrine, the conclusion is that there does not exist an independent basis which allows a federal court to, in effect, outlaw a particular activity absent legal evidence that either state policy or state law dictates or allows such action. Absent any such evidence, the trial court cannot turn to public policy in order to support a conclusion that the courts cannot entertain a particular case.

Second, it is also fundamental that for every injury wrongfully inflicted, some redress under the state common law must be afforded since it is essential that citizens be able to look to their government for redress. As was said in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803), “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the law, whenever he received an injury. One of the first duties of government is to afford that protection.”

The right of citizens to get relief in federal courts is similar to the same right in state court, bearing in mind that the federal courts in diversity cases are applying state law. We must also be cognizant that federal courts are limited to deciding cases or controversies. This was pointed out in Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The Court there said:

those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.

392 U.S. at 95, 88 S.Ct. at 1950.

The Court in Flast was recognizing the right of a federal taxpayer to enjoin the spending of federal funds for the buying of books for use in religious schools. 392 U.S. at 105-06, 88 S.Ct. 1942.

The concurrence of Justice Douglas is worth noting, for he spoke on the right of access to the courts as follows:

The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for the courts to close their doors.

392 U.S. at 111, 88 S.Ct. at 1958.

C. Does Colorado law provide or allow any restraint?

The next question is whether there are applicable restrictions in the Colorado law. On the contrary, the Colorado Constitution, Art. II, § 6, provides: “Court of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.” The district courts are said to be courts of unlimited jurisdiction unlike the federal courts. However, in a diversity case the federal court inherits the jurisdictional scope that is enjoyed by the state court within the district. Art. VI, § 9, subsection (1), provides:

The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, *524probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.

The Colorado courts have liberally construed these provisions. See Patterson v. People, 23 Colo.App. 479, 130 P. 618 (1913); People ex rel. Cruz v. Morley, 77 Colo. 25, 234 P. 178 (1924). In the Morley case it was said: “[t]he constitutional jurisdiction of the district court is unlimited. It should not be limited without circumspection and no statute should be held to limit it unless it says so plainly * * *.” 234 P. at 179.

The Colorado Supreme Court has held that under Art. II, § 6 of the Colorado Constitution, where there exists a right under the law, the courts of the state will assure the protection of that right. O'Quinn v. Walt Disney Productions, Inc., 177 Colo. 190, 493 P.2d 344 (1972).

The common law, of course, obtains in Colorado. The legislature may modify it, but in the absence of evidence that the common law has been modified by legislation, the courts, that is, the district court and the federal district court in a diversity case, must apply it.

We are constrained to hold that the trial court’s ruling that this case had to be dismissed because the injury was inflicted during a professional football game was error.

V.

IS THE STANDARD OF RECKLESS DISREGARD OF THE RIGHTS OF OTHERS APPLICABLE TO THE PRESENT SITUATION?

The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man. Recklessness also differs in that it consists of intentionally doing an act with knowledge not only that it contains a risk of harm to others as does negligence, but that it actually involves a risk substantially greater in magnitude than is necessary in the case of negligence. The authors explain the difference, therefore, in the degree of risk by saying that the difference is so significant as to amount to a difference in kind.

Subsection (f) also distinguishes between reckless misconduct and intentional wrongdoing. To be reckless the act must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.

Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.

In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.

In ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.

*525Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation.

VI.

WHICH OF THE STATUTES OF LIMITATIONS APPLIES?

The appellees contend that Clark was guilty of an assault and battery, if he was guilty of anything; that this is barred by the applicable statute of limitations for a one-year period. Appellant, however, contends that the injury was the result of reckless disregard of the rights of the plaintiff and that the six-year statute provided in Colo.Rev.Stat.Ann. § 13 — 80—110, is applicable.

Our court in the recent decision in Zuniga v. Amfac Foods, Inc., 580 F.2d 380 (10th Cir. 1978), adopted the position that actions in tort are governed by the six-year provision in the cited statute. It is also to be noted that Colorado fully recognizes the action of reckless disregard for the rights of others. See Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950); Shoemaker v. Mountain States Tel. & Tel. Co., 559 P.2d 721 (Colo.App.1976). The definitions contained in § 500 are fully applicable here, and the Colorado Supreme Court in Fanstiel v. Wright, supra, has adopted the definition contained in § 500. A Comment to the section discusses the distinctions which we have previously mentioned.

We conclude that if the evidence establishes that the injuries were the result of acts of Clark which were in reckless disregard of Hackbart’s safety, it can be said that he established a claim which is subject to the six-year statute. The cause has not been tried on its merits, but there is substantial evidence before us that supports the notion that Clark did act in accordance with the tests and standards which are set forth in § 500, supra. We are not prejudging this issue of fact, but are merely saying that considered in a light favorable to the plaintiff, at this stage of the proceedings the hypothesis exists that Clark’s conduct would constitute a violation of § 500 and the appellant should be given an opportunity to offer his proofs in court on this subject.

VII.

DID THE COURT ERR IN RECEIVING IN EVIDENCE FILMS OF VIOLENCE THAT TOOK PLACE IN OTHER FOOTBALL GAMES REGARDLESS OF THE IDENTITY OF THE PLAYERS AND TEAMS?

There was a film of the actual injury suffered by plaintiff. It showed the sequence of events and also depicted the manner of infliction. Obviously we need not consider the relevancy of this.

There were incidents that were designed to show that the plaintiff Hackbart was a dirty player.

Finally, films were shown which depicted acts of violence between other players and other teams.

The Federal Rules of Evidence, Rule 401, define relevant evidence as follows:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

*526Rule 404 deals with character evidence and other crimes. That which deals with character states as follows:

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

Subsection (b) of Rule 404 deals with other wrongs or acts and states the traditional rule that:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Unless the game of football is on trial, and it appeared to be in the case at bar, the acts of violence which occurred in other games and between other teams and players were without relevance. The view we take is that the game of football is not on trial, but, rather, the trial involves a particular act in one game.

Although we recognize that the trial court has a broad discretion in receiving or rejecting evidence along this line, we fail to see the relevancy of other acts which are unconnected with the incident being tried.

The other aspect, namely the proof of the character of the plaintiff by production of prior acts, would be admissible only if his character was an issue in the case. Unless the plaintiff was shown to have been an unlawful aggressor in the immediate incident, his prior acts could not be relevant. The indications from the picture of the action here are that he threw a body block and after the lapse of some time, a short period of time, the blow was struck while Hackbart was down on his knee watching the action. Therefore, this evidence would appear to be questionable if not irrelevant.

On retrial the admissibility of prior unrelated acts should be very carefully considered and should not be received merely for the purpose of showing that the defendant himself had violated rules in times past since this is not per se relevant. Indeed it would be necessary for an issue to exist as to whether Hackbart was the aggressor in order for such evidence to be relevant.

* * * * * *

In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant’s liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.

The trial court has heard the evidence and has made findings. The findings of fact based on the evidence presented are not an issue on this appeal. Thus, it would not seem that the court would have to repeat the areas of evidence that have already been fully considered. The need is for a reconsideration of that evidence in the light of that which is taken up by this court in its opinion. We are not to be understood as limiting the trial court’s consideration of supplemental evidence if it deems it necessary.

*527The cause is reversed and remanded for a new trial in accordance with the foregoing views.

Chief Justice Hayt delivered the opinion of the court.

It is admitted or proven beyond controversy that appellee received a gunshot wound at the hands of the appellant at *115the time and place designated in the complaint, and that as the result of such wound the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances:

That Mr. Courvoisier, on the night in question, was asleep in his bed in the second story of a brick building, situate at the corner of South Broadway and Dakota streets in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed shortly after midnight by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and upon his refusal to comply with this request, they used-profane and abusive epithets toward him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and passing upstairs commenced knocking upon the door of a room where defendant’s sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs and expelled-the intruders from the building. In doing this he passed downstairs and out on the sidewalk as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air, but instead of retreating they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second and perhaps a third shot. The first shot fired attracted the attention of plaintiff Raymond and two deputy sheriffs, who were at the Tramway depot, across the street. These officers started toward Mr. Courvoisier, who still continued to shoot, but two of them stopped when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer and to stop shooting. Although the night was dark, the street was well lighted by electricity, and when the officer *116approached him defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of.

The plaintiff’s theory of the case is that he was a duly authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace, and that the defendant, knowing him to be a police officer, recklessly fired the shot in question.

The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in self-defense, and that defendant did so believe at the time of firing the shot.

The first error argued brings up for review the action of the district court in overruling a challenge interposed by the defendant to the juror Gibbons. The ground of this challenge will appear from the following:

“ Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court.

“ Q. As a talesman? A. Yes, sir.

“The Court. When did you serve, Mr. Gibbons? A. A few weeks ago.

“The Court. Since the first of January? A. Yes, sir.”

The statute relied upon to support the challenge reads as follows:

“ The fact that any juror in any district or county court shall have served as juror of the regular panel, or as talesman, in either of said courts at anytime within the year next preceding, shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror.” Session Laws, 1889, page 220, sec. 1.

The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the stat*117ute, and we think it must be upheld as the obvious meaning of the act.

The second error assigned is upon the overruling of defendant’s objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions or for expert opinions upon the probable effects of the wound. We think the objections to these questions were properly overruled. The questions contain such a description of the wound as is easily understood by the lay mind, and the answers show that it was fully understood by the experts. The questions are framed upon the assumption that the evidence tended to prove certain facts. This assumption, being within the probable or possible range of the evidence, is permissible. Jackson v. Burnham, 20 Colo. 582.

The third assignment of error challenges the refusal of the court to permit witnesses for the defendant to testify as to whether or not, as a result of a criminal prosecution, one of the participants was convicted of “throwing a stone and hitting Mr. Courvoisier that night.” The objection to this question was properly sustained. If proof of such conviction was admissible, the record is the best evidence thereof, except in the instances specified by statute. Mills’ Annotated Statutes, sec. 4822. But as this action is between other parties, even the record is not admissible in this case.

It was attempted to prove by the witness Reed, who was at the time marshal of the town of South Denver, that the neighborhood in the immediate vicinity of defendant’s house had been the scene of frequent robberies and disturbances shortly prior to this shooting. This evidence was offered for the purpose of justifying the defendant’s action. It is claimed that conduct which would cause no apprehension in a quiet and peaceful neighborhood would naturally and rea*118sonably excite alarm if disturbances and breaches of the peace were frequent. We think, however, the court was justified in refusing this evidence. Its tendency is to raise collateral issues, and thereby divert the attention of the jury.

Under the fourth assignment of error it is claimed that evidence of the financial standing of the defendant was not admissible. If the jury believed from the evidence that the shooting was done with malice, or that the injury was the result of a wanton and reckless disregard of plaintiff’s rights and not in necessary self-defense, exemplary damages might have been awarded, and wherever such damages are permissible, the financial condition of the defendant may be shown. In a number of cases, commencing with Murphy v. Hobbs, 7 Colo. 541, it has been held that in civil actions for injuries resulting from torts, exemplary damages, as a punishment, were not permissible, if the offense is punishable under the criminal laws. These decisions were based upon the common law. In 1889 the legislature provided, by statute, that exemplary damages may be given in certain cases. Before the passage of this act the question was one upon which the courts disagreed, but the statute has now settled the practice in this state.

The next error assigned relates to the instructions given by the court to the jury and to those requested by the defendant and refused by the court. The second instruction given by the court was clearly erroneous. The instruction is as follows: “The court instructs you that if you believe from the evidence, that, at the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff.”

The vice of this instruction is that it excluded from the juiy a full consideration of the justification claimed by the defendant. The evidence for the plaintiff tends to show that the shooting, if not malicious, was wanton and reckless, but the evidence for the defendant tends to show that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life *119was in danger, or that he was in danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that he did so believe.

He swears that his house was invaded shortly after midnight by two men, whom he supposed to be burglars; that when ejected, they were joined on the outside by three or four others; that the crowd so formed assaulted him with stones and other missiles, when, to frighten them away, he shot into the air; that instead of going away someone approached him from the direction of the crowd; that he supposed this person to be one of the rioters, and did not ascertain that it was the plaintiff until after the shooting. He says that he had had no previous acquaintance with plaintiff; that he did not know that he was a police officer, or that there were any police officers in the town of South Denver; that he heard nothing said at the time by the plaintiff or anyone else that caused him to think the plaintiff was an officer; that his eyesight was greatly impaired, so that he was obliged to use glasses, and that he was without glasses at the time of the shooting, and for this reason could not see distinctly. He then adds: “I saw a man come away from the hunch of men and come up towards me, and as I looked around I saw this man put his hand to his hip pocket. I didn’t think I had time to jump aside, arid therefore turned around and fired, at him. I had no doubts but it was somebody that had come to rob me, because some weeks before Mr. Wilson’s store was robbed. It is next door to mine.”

By this evidence two phases of the transaction are presented for consideration: First, was the plaintiff assaulting the defendant at the time plaintiff was shot? Second, if not, was there sufficient evidence of justification for the consideration of the jury? The first question was properly submitted, but the second was excluded by the instruction under review. The defendant’s justification did not rest entirely upon the proof of assault by the plaintiff. A riot was in progress, and the defendant swears that he was attacked with missiles, hit with stones, brickbats, etc.; that he shot *120plaintiff, supposing him to be one of the rioters. We must assume these facts as established in reviewing the instruction, as we cannot say what the jury might have found had this evidence been submitted to them under a proper charge.

By the second instruction the conduct of those who started the fracas was eliminated from the consideration of the jury. If the jury believed from the evidence that the defendant would have been justified in shooting one of the rioters had such person advanced towards him as did the plaintiff, then it became important to determine whether the defendant mistook plaintiff for one of the rioters, and if such a mistake was in fact made, was it excusable in the light of all the circumstances leading up to and surrounding the commission of the act? If these issues had been resolved by the jury in favor of the defendant, he would have been entitled to a judgment. Morris v. Platt, 32 Conn. 75; Patton v. People, 18 Mich. 318; Kent v. Cole, 84 Mich. 579; Higgins v. Minaghan, 76 Wis. 268.

The opinion in the first of the cases above cited contains an exhaustive review of the authorities and is very instructive. The action was for damages resulting from a pistol shot wound. The defendant justified under the plea of self-defense. The proof for the plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at another, and the court held that, if the defendant was justified in firing the shot at'his antagonist, he was not liable to the plaintiff, for the reason that .the act of shooting was lawful under the circumstances.

Where a defendant in a civil action like the one before us attempts to justify on a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances; and also as to the reasonableness of the means made use of. In this case perhaps the verdict would not have been different had the jury been properly instructed, but it might have been, and therefore the judgment must be reversed.

Reversed.

MOORE, Chief Justice.

The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

We are not here concerned with a man’s right to protect his home and members of his family. Defendants’ home was several miles from the scene of the incident to which we refer infra.

*658Plaintiffs action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community where defendants’ property was located. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and $10,000 punitive damages.

After careful consideration of defendants’ motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants.

I. In this action our review of the record as made by the parties in the lower court is for the correction of errors at law. We do not review actions at law de novo. Rule 334, Rules of Civil Procedure. Findings of fact by the jury are binding upon this court if supported by substantial evidence. Rule 344(f), par. 1, R.C.P.

II. Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents’ farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and “messing up of the property in general”. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.

Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted “no trespass” signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set “a shotgun trap” in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney’s suggestion it was lowered to hit the legs. He admitted he did so “because I was mad and tired of being tormented” but “he did not intend to injure anyone”. He gave no explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and Mc-Donough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p. m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by Me-*659Donough’s assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

Plaintiff’s doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period.

There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability.

III. Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff’s first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him.

IV. The main thrust of defendants’ defense in the trial court and on this appeal is that “the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief”. They repeated this contention in their exceptions to the trial court’s instructions 2, 5 and 6. They took no exception to the trial court’s statement of the issues or to other instructions.

In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants’ house. In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence.

Instruction 5 stated: “You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.”

Instruction 6 stated: “An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.”

Instruction 7, to which defendants made no objection or exception, stated: “To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions :

“1. That defendants erected a shotgun trap in a vacant house on land owned by de*660fendant, Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers and thieves.

“2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property.

“3. That plaintiff was injured and damaged and the amount thereof.

“4. That plaintiff’s injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants.”

The overwhelming weight of authority, both textbook and case law, supports the trial court’s statement of the applicable principles of law.

Prosser on Torts, Third Edition, pages 116-118, states:

“ * * * the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify a self-defense. * * * spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind.”

Restatement of Torts, section 85, page 180, states: “The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * A posessor of.land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore,- he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.”

In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: “The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only — even a theft of property — the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.”

Similar statements are found in 38 Am. Jur., Negligence, section 114, pages 776, 777, and 65 C.J.S. Negligence § 62(23), pages 678, 679; Anno. 44 A.L.R.2d 383, entitled “Trap to protect property”.

In Hooker v. Miller, 37 Iowa 613, we held defendant vineyard owner liable for damages resulting from a spring gun shot although plaintiff was a trespasser and there to steal grapes. At pages 614, 615, this statement is made: “This court has held that a mere trespass against property other than a dwelling is not a sufficient justification to authorize the use of a dead*661ly weapon by the owner in its defense; and that if death results in such a case it will be murder, though the killing be actually necessary to prevent the trespass. The State v. Vance, 17 Iowa 138.” At page 617 this court said: “[Trespassers and other . inconsiderable violators of the law are not to be visited by barbarous punishments or prevented by inhuman inflictions of bodily injuries.”

The facts in Allison v. Fiscus, 156 Ohio 120, 100 N.E.2d 237, 44 A.L.R.2d 369, decided in 1951, are very similar to the case at bar. There plaintiff’s right to damages was recognized for injuries received when he feloniously broke a door latch and started to enter defendant’s warehouse with intent to steal. As he entered a trap of two sticks of dynamite buried under the doorway by defendant owner was set off and plaintiff seriously injured. The court held the question whether a particular trap was justified as a use of reasonable and necessary force against a trespasser engaged in the commission of a felony should have been submitted to the jury. The Ohio Supreme Court recognized plaintiff’s right to recover punitive or exemplary damages in addition to compensatory damages.

In Starkey v. Dameron, 96 Colo. 459, 45 P.2d 172, plaintiff was allowed to recover compensatory and punitive damages for injuries received from a spring gun which defendant filling station operator had concealed in an automatic gasoline pump as protection against thieves.

In Wilder v. Gardner, 39 Ga.App. 608, 147 S.E. 911, judgment for plaintiff for injuries received from a spring gun which defendant had set, the court said: “A person in control of premises may be responsible even to a trespasser for injuries caused by pitfalls, mantraps, or other like contrivances so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury.”

In Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425, defendant rigged a bomb inside his outdoor theater so that if anyone came through the door the bomb would explode. The court reversed plaintiff’s recovery because of an incorrect instruction but at page 426 said: “While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to the life and limb of those whose appearance and presence may be reasonably anticipated, even though they may be trespassers.”

In United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 275, 42 S.Ct. 299, 66 L.Ed. 615, 617, the court states: “The liability for spring guns and mantraps arises from the fact that the defendant has * * * expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it.”

In addition to civil liability many jurisdictions hold a land owner criminally liable for serious injuries or homicide caused by spring guns or other set devices. See State v. Childers, 133 Ohio 508, 14 N.E.2d 767 (melon thief shot by spring gun); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (policeman killed by spring gun when he opened unlocked front door of defendant’s shoe repair shop); State v. Marfaudille, 48 Wash. 117, 92 P. 939 (murder conviction for death from spring gun set in a trunk) ; State v. Beckham, 306 Mo. 566, 267 S.W. 817 (boy killed by spring gun attached to window of defendant’s chili stand); State v. Green, 118 S.C. 279, 110 S.E. 145, 19 A.L.R. 1431 (intruder shot by spring gun when he broke and entered vacant house. Manslaughter conviction of owner-affirmed); State v. Barr, 11 Wash. 481, 39 P. 1080 (murder conviction affirmed for death of an intruder into a boarded up cabin in which owner had set a spring gun).

In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. 44 A.L.R., section 3, pages 386, 388.

*662The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants’ objections and exceptions thereto. Defendants’ various motions based on the same reasons stated in exceptions to instructions were properly overruled.

V. Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the $10,000 award should be allowed to stand.

We express no opinion as to whether punitive damages are allowable in this type of case. If defendants’ attorneys wanted that issue decided it was their duty to raise it in the trial court.

The rule is well established that we will not consider a contention not raised in the trial court. In other words we are a court of review and will not consider a contention raised for the first time in this court. Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, 9; In re Adoption of Moriarty, 260 Iowa 1279, 1288, 152 N.W.2d 218, 223; Verschoor v. Miller, 259 Iowa 170, 176, 143 N.W.2d 385, 389; Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469, 472; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1096, 104 N.W.2d 562, 563, and citations.

In our most recent reference to the rule we say in Cole v. City of Osceola, Iowa, 179 N.W.2d 524, 527: “Of course, questions not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal.”

Under our law punitive damages are not allowed as a matter of right. Sebastian v. Wood, 246 Iowa 94, 100, 101, 66 N.W.2d 841, 844. When malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others, punitive damages may be allowed as punishment to the defendant and as a deterrent to others. Although not meant to compensate a plaintiff, the result is to increase his recovery. He is the fortuitous beneficiary of such an award simply because there is no one else to receive it.

The jury’s findings of fact including a finding defendants acted with malice and with wanton and reckless disregard, as required for an allowance of punitive or exemplary damages, are supported by substantial evidence. We are bound thereby.

This opinion is not to be taken or construed as authority that the allowance of punitive damages is or is not proper under circumstances such as exist here. We hold only that question of law not having been properly raised cannot in this case be resolved.

Study and careful consideration of defendants’ contentions on appeal reveal no reversible error.

Affirmed.

LARSON, Justice.

I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who attempted to enter the room. Under the record presented here, that was a fact question. Unless it is held that these property owners are liable for any injury to a intruder from such a device regardless of the intent with which it is installed, liability under these pleadings must rest upon two definite issues of fact, i. e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and unreasonable force against him?

It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this but other jurisdictions, *663and that it has not thought through all the ramifications of this holding.

There being no statutory provisions governing the right of an owner to defend his property by the use of a spring gun or other like device, or of a criminal invader to recover punitive damages when injured by such an instrumentality while breaking into the building of another, our interest and attention are directed to what should be the court determination of public policy in these matters. On both issues we are faced with a case of first impression. We should accept the task and clearly establish the law in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, I would absolve the owner from liability other than for negligence. I would also hold the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious criminal offense such as breaking and entering with intent to steal.

It appears to me that the learned trial court was and the majority is now confused as to the basis of liability under the circumstances revealed. Certainly, the trial court’s instructions did nothing to clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, S and 6 were made by the defendants, and thereafter the court should have been aware of the questions of liability left unresolved, i. e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied building of spring guns or other devices capable of inflicting serious injury or death on an intruder regardless of the intent with which they are installed, or whether such an intent is a vital element which must be proven in order to establish liability for an injury inflicted upon a criminal invader.

Although the court told the jury the plaintiff had the burden to prove “That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property”, it utterly failed to tell the jury it could find the installation was not made with the intent or purpose of striking or injuring the plaintiff. There was considerable evidence to that effect. As I shall point out, both defendants stated the installation was made for the purpose of scaring or frightening away any intruder, not to seriously injure him. It may be that the evidence would support a finding of an intent to injure the intruder, but obviously that important issue was never adequately or clearly submitted to the jury.

Unless, then, we hold for the first time that liability for death or injury in such cases is absolute, the matter should be remanded for a jury determination of defendant’s intent in installing the device under instructions usually given to a jury on the issue of intent.

I personally have no objection to this court’s determination of the public policy of this state in such a case to ban the use of such devices in all instances where there is no intruder threat to human life or safety, but I do say we have never done so except in the case of a mere trespasser in a vineyard. Hooker v. Miller, 37 Iowa 613 (1873). To that extent, then, this is a case of first impression, and in any opinion we should make the law in this jurisdiction crystal clear. Although the legislature could pronounce this policy, as it has in some states, since we have entered this area of the law by the Hooker decision, I believe it proper for us to declare the applicable law in cases such as this for the guidance of the bench and bar hereafter. The majority opinion utterly fails in this regard. It fails to recognize the problem where such a device is installed in a building housing valuable property to ward off criminal intruders, and to clearly place the burden necessary to establish liability.

My second reason for this dissent is the allowance of an award of punitive damages herein. Plaintiff claimed a remedy which *664our law does not allow, and the trial court should not have submitted that issue to the jury. Like the law establishing liability for installing a spring gun or other similar device, the law recognizing and allowing punitive or exemplary damages is court-made law, not statutory law. As to the property owner’s liability for exemplary damages where one is engaged in a serious criminal offense at the time of his injury, we also have a case of first impression. We have never extended this right to such a claimant, and I would not do so now. Unless we do, or there is a compelling reason or authority for such a right, which I fail to find, the trial court erred in submitting that issue to the jury. Like the case where a judgment is entered without jurisdiction of the subject matter, I would hold the award of $10,000 to plaintiff is void.

I do not wish to criticize, but believe the factual statement of the majority fails to give a true perspective of the relative facts and issues to be considered.

Plaintiff’s petition at law asking damages alleged willful and malicious setting of a trap or device for the purpose of killing or inflicting great bodily harm upon any trespasser on defendants’ property. We are, therefore, factually concerned with how such force may be properly applied by the property owner and whether his intent is relevant to liability. Negligent installation of a dangerous device to frighten and ward off an intruder or thief is not alleged, so unless the proof submitted was sufficient to establish a willful setting of the trap with a purpose of killing or seriously injuring the intruder, no recovery could be had. If the evidence submitted was such that a jury could find defendants had willfully set the spring gun with a purpose to seriously injure the plaintiff intruder, unless they were privileged under the law to set the gun under these circumstances, liability for the injury would follow.

From the record we learn that plaintiff and a companion made a second trip to a furnished but uninhabited house on defendants’ farmland in Mahaska County on the night of July 16, 1967. They tore a plank from a porch window, entered the house with an intent to steal articles therein, and in search of desired articles plaintiff came to a closed bedroom door where he removed a chair braced under the door knob and pulled the door toward him. This action triggered a single shot 20-gauge shotgun which defendants had wired to the bottom of a bed. The blast went through the door and struck plaintiff two or three inches above the right ankle.

The Mahaska County Grand Jury issued a true bill charging plaintiff with breaking and entering in the nighttime, but the county attorney accepted a plea of guilty to the lesser offense of larceny in the nighttime of property of a value of less than $20 and did not press the greater charge.

At the trial of this case Mr. Briney, one of the defendants, testified that the house where plaintiff was injured had been the home of Mrs. Briney’s parents. He said the furniture and other possessions left there were of considerable value and they had tried to preserve them and enjoy them for frequent visits by Mrs. Briney. It appeared this unoccupied house had been broken into repeatedly during the past ten years and, as a result, Mr. Briney said “things were pretty well torn up, a lot of things taken.” To prevent these intrusions the Brineys nailed the doors and some windows shut and boarded up others. Prior to this time Mr. Briney testified he had locked the doors, posted seven no trespassing signs on the premises, and complained to the sheriffs of two counties on numerous occasions. Mr. Briney further testified that when all these, efforts were futile and the vandalism continued, he placed a 20-guage shotgun in a bedroom and wired it so that it would shoot downward and toward the door if anyone opened it. He said he first aimed it straight at the door but later, at his wife’s suggestion, reconsidered the aim and pointed the gun down in a way he thought would only scare *665someone if it were discharged. On cross-examination he admitted that he did not want anyone to know it was there in order to preserve the element of surprise.

Plaintiff testified he knew the house was unoccupied and admitted breaking into it in the nighttime without lawful reason or excuse. He claimed he and his companion were seeking old bottles and dated fruit jars. He also admitted breaking in on one prior occasion and stated the reason for the return visit was that “we decided we would go out to this place again and see if there was something we missed while we was out there the first time.” An old organ fascinated plaintiff. Arriving this second time, they found that the window by which they had entered before was now a “solid mass of boards” and walked around the house until they found the porch window which offered less resistance. Plaintiff said they crawled through this window. While searching the house he came to the bedroom door and pulled it open, thus triggering the gun that delivered a charge which struck him in the leg.

Plaintiff’s doctor testified that he treated the shotgun wound on the night it was sustained and for some period thereafter. The healing process was successful and plaintiff was released after 40 days in the hospital. There was medical testimony that plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

That plaintiff suffered a grievous wound is not denied, and that it constituted a serious bodily injury cannot be contradicted.

As previously indicated, this appeal presents two vital questions which are as novel as they are difficult. They are, (1) is the owner of a building in which are kept household furniture, appliances, and valuables, but not occupied by a person or persons, liable in damages to an intruder who in the nighttime broke into and entered the building with the intent to steal and was shot and seriously injured by a spring gun allegedly set by the owner to frighten in-traders from his property, and (2) if he is liable for compensatory damages, is this a proper case for the allowance of exemplary or punitive damages?

The trial court overruled all objections to the instructions and denied defendants’ motion for a new trial. Thus, the first question to be resolved is the status of the law in this jurisdiction as to the means of force a property owner is privileged to use to repel (1) a mere trespasser, (2) a criminal invader, thief or burglar, where he presents no threat to human life or safety, and (3) an intruder or criminal breaking and entering a dwelling which poses a threat to human life and safety. Overlooked by the majority is the vital problem relating to the relevancy and importance of the owner’s intent in placing the device.

I have been unable to find a case exactly like the case at bar, although there have been many cases which consider liability to a mere trespasser for injuries incurred by a spring gun or other dangerous instruments set to protect against intrusion and theft. True, some of these cases seem to turn on the negligence of the party setting the trap and an absence of adequate warning thereof, but most of them involve an alleged intentional tort. It is also true some hold as a matter of public policy there is liability for any injury following the setting of a device which is intended to kill or inflict great bodily injury on one coming on the owner’s property without permission, unless the invader poses a threat to human life, and this is so even though there is no statutory prohibition against the setting of spring guns in the jurisdiction.

Since our decision in Hooker v. Miller, supra, we have recognized in this state the doctrine that the owner of a premise is liable in damages to a mere trespasser coming upon his property for any injury occasioned by the unsafe condition of the property which the owner has intentionally permitted to exist, such as installed spring guns, unless adequate warning is given thereof. In *666Hooker, which involved stealing grapes from a vineyard, we held a property owner had no right to resist such a trespass by means which may kill or inflict great bodily injury to the trespasser. But it does appear therein that we recognized some distinction between a mere trespass against property and a trespass involving a serious crime or involving a dwelling. Except when the trespass involves a serious crime, a crime posing a threat to human life, it may be argued that the law in this jurisdiction should limit the right of one to protect his property, that he does not have a privilege to resist a mere trespass by using a spring gun or other device which poses a threat to life.

However, left unsettled by this and other court pronouncements is the means which may be used to repel, prevent, or apprehend a trespasser engaged in a more serious criminal offense. True, there is a line of cases which seem to apply the same rule to all criminal trespasses except those involving arson, rape, assault, or other acts of violence against persons residing on the property invaded. State v. Vance, 17 Iowa 138 (1864); State v. Plumlee, 177 La. 687, 149 So. 425 (1933); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (Virginia, 1923); Simpson v. State, 59 Ala. 1, 31 Am.Rep. 1 (1877); State v. Barr, 11 Wash. 481, 39 P. 1080 (1895) ; Starkey v. Dameron, 96 Colo. 459, 21 P.2d 1112 (1933); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (1924); Bird v. Holbrook, 4 Bingham’s Reports 628 (England, 1828). Also see annotation, 44 A.L.R.2d 391, § 5, and citations. There are others which at least infer that any serious law violation by the trespasser might permit the reasonable use of dangerous instrumentalities to repel the intruder and prevent loss or damage to one’s valuable property. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335; Marquis v. Benfer, Tex.Civ.App., 298 S.W.2d 601 (Texas 1956); Grant v. Hass, 31 Tex.Civ.App. 688, 75 S.W. 342 (1903); Gray v. Combs, 7 J.J. Marshall 478 (Ky., 1832), 23 Am.Dec. 431; Ilott v. Wilkes, 3 B. & A. 304 (1820 K.B.).

Also see the following articles on this subject: 68 Yale Law Journal 633, Duties to Trespassers: A Comparative Survey and Revaluation; 35 Yale Law Journal 525, The Privilege to Protect Property by Dangerous Barriers and Mechanical Devices; annotation, 44 A.L.R.2d 383, Use of Set Gun, Trap, or Similar Device on Defendant’s Own Property.

Most of these discussions center around what should be public policy regarding a property owner’s right to use a . dangerous weapon or instrumentality to protect his premises from intruders or trespassers, and his duty to protect the trespasser from serious injury while upon his premises.

Some states, including Wisconsin, have statutes which announce the jurisdiction’s public policy. Often they prohibit the use of spring guns or such devices to protect real and personal property, and of course in those instances a property owner, regardless of his intent or purpose, has no right to make use of them and is liable to anyone injured thereby. Since there has been no such statutory prohibition or direct judicial pronouncement to that effect prior to this time in this state, it could not be said as a matter of law that the mere placing of a spring gun in a building on one’s premises is unlawful. Much depends upon its placement and purpose. Whether an owner exceeds his privilege to reasonably defend his property by such an installation, and whether liability is incurred in a given case, should therefore depend upon the circumstances revealed, the intent of the property owner, and his care in setting the device. In any event, I question whether it should be determined solely by the results of his act or its effect upon the intruder.

It appears there are cases and some authority which would relieve one setting a spring gun on his premises of any liability if adequate warning had been given an intruder and he ignores the warning. In all of these cases there is a question as to *667the intent of the property owner in setting the device. Intent, of course, may be determined from both direct and indirect evidence, and it is true the physical facts may be and often are sufficient to present a jury issue. I think they were here, but no clear instruction was given in this regard.

If, after proper instructions, the finder of fact determines that the gun was set with an intent and purpose to kill or inflict great bodily injury on an intruder, then and only then may it be said liability is established unless the property so protected is shown to be an occupied dwelling house. Of course, under this concept, if the finder of fact determines the gun set in an unoccupied house was intended to do no more than to frighten the intruder or sting him a bit, no liability would be incurred under such pleadings as are now presented. If such a concept of the law were adopted in Iowa, we would have here a question for the fact-finder or jury as to whether the gun was willfully and intentionally set so as to seriously injure the thief or merely scare him away.

I feel the better rule is that an owner of buildings housing valuable property may employ the use of spring guns or other devices intended to repel but not seriously injure an intruder who enters his secured premises with or without a criminal intent, but I do not advocate its general use, for there may also be liability for negligent installation of such a device. What I mean to say is that under such circumstances as we have here the issue as to whether the set was with an intent to seriously injure or kill an intruder is a question of fact that should be left to the jury under proper instructions, and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability.

In the case of a mere trespass able authorities have reasoned that absolute liability may rightfully be fixed on the landowner for injuries to the trespasser because very little damage could be inflicted upon the property owner and the danger is great that a child or other innocent trespasser might be seriously injured by the device. In such matters they say no privilege to set up the device should be recognized by the courts regardless of the owner’s intent. I agree.

On the other hand, where the intruder may pose a danger to the inhabitants of a dwelling, the privilege of using such a device to repel has been recognized by most authorities, and the mere setting thereof in the dwelling has not been held to create liability for an injury as a matter of law. In such cases intent and the reasonableness of the force would seem relevant to liability.

Although I'am aware of the often-repeated statement that personal rights are more important than property rights, where the owner has stored his valuables representing his life’s accumulations, his livelihood business, his tools and implements, and his treasured antiques as appears in the case at bar, and where the evidence is sufficient to sustain a finding that the installation was intended only as a warning to ward off thieves and criminals, I can see no compelling reason why the use of such a device alone would create liability as a matter of law.

For cases considering the devices a property owner is or is not privileged to use to repel a mere trespasser, see Hooker v. Miller, supra, 37 Iowa 613 (trap gun set in orchard to repel); State v. Vance, supra, 17 Iowa 138 (1864); Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425 (1918) (bomb set in open air theater); State v. Plumlee, supra, 177 La. 687, 149 So. 425 (1933) (trap gun set in open barn) ; Starkey v. Dameron, supra, 96 Colo. 459, 21 P.2d 1112 (1933) (spring gun in outdoor automatic gas pump); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767 (1938) (trap gun in melon patch); Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934) (trap gun in junkyard); Johnson v. Patterson, 14 Conn. 1 (1840) *668(straying poultry poisoned); Bird v. Holbrook, supra, 4 Bingham’s Reports 628 (England, 1828) (spring gun in garden enclosed by wall of undisclosed height).

For cases apparently holding dangerous devices may be used to ward off and prevent a trespasser from breaking and entering into an inhabited dwelling, see State v. Vance, supra; Grant v. Hass, supra; Scheuermann v. Scharfenberg, supra; Simpson v. State, supra; United States v. Gilliam, 1 Hayw. & H. 109, 25 Fed.Cas. 1319, p. 1320, No. 15,205 a (D.C. 1882); State v. Childers, supra; Gramlich v. Wurst, 86 Pa. 74, 80 (1878).

Also, for cases considering the devices a property owner is privileged to use to repel an invader where there is no threat to human life or safety, see Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44 A.L.R.2d 369; State v. Barr, 11 Wash. 481, 39 P. 1080 (1895); State v. Childers, supra; Weis v. Allen, supra; Pierce v. Commonwealth, supra; Johnson v. Patterson, supra; Marquis v. Benfer, supra.

In Allison v. Fiscus, supra, at page 241 of 100 N.E.2d, it is said: “Assuredly, * * * the court had no right to hold as a matter of law that defendant was liable to plaintiff, as the defendant’s good faith in using the force which he did to protect his building and the good faith of his belief as to the nature of the force he was using were questions for the jury to determine under proper instructions.” (Emphasis supplied.)

In State v. Barr, supra, at page 1081 of 39 P., the court said: “ * * * whether or not what was done in a particular case was justified under the law must be a question of fact, or mixed law and fact, and not a pure question of law.”

In State v. Childers, supra, it is said at page 768 of 14 N.E.2d: “Of course the act in question must be done maliciously * * * and that fact must be proved and found by the jury to exist." (Emphasis supplied.)

Also see State v. Metcalfe, 203 Iowa 155, 212 N.W. 382, where this court discussed the force that a property owner may use to oppose an unlawful effort to carry away his goods, and held the essential issue in such matters which must be explained to the jury is not the nature of the weapon employed but whether the defendant employed only that degree of force to accomplish such purpose which a reasonable person would deem reasonably necessary under the circumstances as they appeared in good faith to the defendant.

Like the Ohio Supreme Court in Allison v. Fiscus, supra, I believe that the basis of liability, if any, in such a case should be either the intentional, reckless, or grossly negligent conduct of the owner in setting the device.

If this is not a desirable expression of policy in this jurisdiction, I suggest the body selected and best fitted to establish a different public policy would be the State Legislature.

The next question presented is, which view of the law set out above did the trial court take, the view that the mere setting of a spring gun or like device in defendants’ building created liability • for the resulting injury, or the view that there must be a setting of the device with an intent to shoot, kill, or seriously injure one engaged in breaking and entering this house ? Appellants argue this was not made clear in the court’s instructions to the jury and, being material, is error. I agree.

They contend Instructions Nos. 2, 5 and 6, to which proper and timely exceptions were taken, are improper, that they were so inadequate and confusing as to constitute reversible error and required the trial court to grant their motion for a new trial.

Instruction No. 5 provides:

“You are hereby instructed that one may use reasonable force in the protection of his property, .but such right is subject to the qualification that one may not use such means of force as will take human life *669or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.” (Emphasis supplied.)

Instruction No. 6 provides:

“An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict ¡great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.” (Emphasis supplied.)

Specific objections were made to Instruction No. 2, inter alia, to the statement that in this jurisdiction the use of force which may take life or inflict serious bodily injury might be used was restricted to occupied dwellings or where specific statutes permitted its use; to the reference to an Iowa case wherein the subject related to a simple trespass in a vineyard where no breaking and entry of a building was involved, without pointing out the difference as to permissible force permitted to repel one entering the owner’s buildings with intent to ravish and steal valuable personal property; and to the error resulting when the court wrongfully directed the jury to find defendants’ acts were illegal by stating “that in so doing he violated the law and became liable for injuries sustained by the plaintiff.”

In other words, defendants contended that this instruction failed to tell the jury the extent of defendants’ rights to defend against burglary in buildings other than their dwelling, inferring they have no right to employ a device which is dangerous to life and limb, regardless of its intended purpose only to ward off or scare the intruder.

Defendants also specifically objected to Instruction No. 5 because it also limited the right or privilege of one to use dangerous devices in any way to protect his property, and made it applicable to cases where the invader was in violation of the law, without classifying his offense.

Instruction No. 6 was specifically objected to as not being a proper statement of the law, as being inadequate, confusing, and misleading to the jury in regard to the vital issues in this case, because it would not be possible for a jury to understand the court when it told the jurors an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury, and then told them a person owning premises is prohibited from setting out spring guns and like dangerous devices which will “likely” take life or inflict great bodily injury, for the purpose of harming trespassers.

Appellants argue from these instructions the jury could conclude it must find any setting of a spring gun or such other device to protect his property from a burglar or other criminal invader made the owner absolutely liable for injuries suffered by the intruder, unless the building being so protected was a dwelling, regardless of the owner’s intent and purpose in setting the device in his building. On the other hand, in Instruction No. 6 the court refers to such a setting with the intent and purpose of killing or seriously injuring the intruder in order to make the owner liable for damages.

I too find these instructions are confusing. If the court was telling the jury, as appellants contend, that an owner of a premise may not set a spring gun to protect his property unless the trespasser’s act amounts to a felony of violence and *670endangers human life, the phrase used, “for the purpose of harming trespassers”, introduces the element of intent and would tend to confuse the jury as to the law on that issue. If the issue here was that such an intent was necessary to establish liability, the instruction was erroneous and confusing; otherwise the error was without prejudice.

I would, therefore, conclude there is merit in appellants’ contention that the law was not made clear to the jury as to whether the act of placing a spring gun on this premise was prohibited by law, or whether the act of placing such a device requires a finding of intention to shoot the intruder or cause him great bodily injury to establish liability. I cannot tell whether the jury found liability on the mere act of placing the gun as Mr. Briney did in this house or on the fact that he did so with the intent to seriously harm a trespasser.

In the case at bar, as I have pointed out, there is a sharp conflict in the evidence. The physical facts and certain admissions as to how the gun was aimed would tend to support a finding of intent to injure, while the direct testimony of both defendants was that the gun was placed so it would “hit the floor eventually” and that it was set “low so it couldn’t kill anybody.” Mr. Briney testified, “My purpose in setting up the gun was not to injure somebody. I thought more or less that the gun would be at a distance of where anyone would grab the door, it would scare them”, and in setting the angle of the gun to hit the lower part of the door, he said, “I didn’t think it would go through quite that hard.”

If the law in this jurisdiction permits, which I think it does, an explanation of the setting of a spring gun to repel invaders of certain private property, then the intent with which the set is made is a vital element in the liability issue.

In view of the failure to distinguish and clearly give the jury the basis upon which it should determine that liability issue, I would reverse and remand the entire case for a new trial.

As indicated, under these circumstances the trial court should not have submitted the punitive damage issue to the jury in this case. By Instruction No. 14 the learned trial judge wrongfully instructed the jury that the law of Iowa allows a jury in such a case to award exemplary damages if it' is found that the act complained of is wanton and reckless or where the defendants are guilty of malice. True, this instruction was in accordance with certain past pronouncements of this court and no objection was taken to the substance of the instruction, but defendants have always contended under these circumstances the court should not have submitted the question of exemplary damages to the jury. We have never extended the exemplary damage law to cover such cases and I maintain we should not do so now, directly or indirectly. Without such a pronouncement to that extent, or some legislation extending that right to a person engaged in a serious criminal offense at the time of his injury, I believe the trial court possessed no jurisdiction to permit the jury to pass on such a claim, even though no objections thereto were made by the defendants.

Although this subject has been considered and discussed in several Iowa cases, including Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841, and citations, granting exemplary damages for injury due to alleged reckless driving, and Amos v. Prom, 115 F.Supp. 127, relating to alleged mental suffering and humiliation when denied admission to a public dance hall, none seem to consider whether punitive damages are permitted where the injured party was, as here, engaged in a criminal act such as breaking and entering, burglary, or other serious offense. Also see Morgan v. Muench, 181 Iowa 719, 156 N.W. 819, and Stricklen v. Pearson Construction Co., 185 Iowa 95, 169 N.W. 628, and citations in each.

*671Although I have found no authority to assist me in my view, I am convinced it is correct in principle and should be adopted in this jurisdiction. In so doing, I adhere to the rule recognized in Amos v. Prom, supra, at 137, et seq., where it is stated: “ * * * the principle that intentional wrongful action in disregard for the rights of others amounts to conduct to which the law will attach a penalty and deterrent by way of exemplary damages.” However, I would not extend this privilege to a case where the injured party’s conduct itself was criminal and extremely violative of good public behavior.

From a general review of the subject of exemplary or punitive damages beginning with Wilkes v. Wood (1763), Lofft 1, 98 English Rep. 489, 498, which stated such “Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, * * * ”, I find that both in England and the United States the purpose of this law was to restrain arbitrary and outrageous vise of power. See 70 Harvard L.Rev. 517, 519 (1957), Exemplary Damages in the Law of Torts.

In Hawk v. Ridgway, 33 Ill. 473, 475 (1864), the Illinois court said, “Where the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquillity.”

Some courts rationalize punitive damages on the basis that they provide an outlet for the injured party’s desire for revenge and thereby help keep the peace. Some others rationalize it as a punishment to defendant and to deter him and others from further antisocial conduct. It has also been said punitive damages are ordinarily a means of increasing the severity of the admonition inherent in the compensatory award. See 44 Harvard L.Rev. 1173 (1931).

A further study of this law indicates punitive damages have a direct relation to the criminal law. Historically, it was undoubtedly one of the functions of tort law to deter wrongful behavior. However, in modern times its priority has become that of compensating the victim of the injury. The business of punishing wrongdoers has increasingly become the exclusive purview of the criminal law. See Pollock and Maitland, History of English Law, Vol. II, 2d Ed. (1898), § 1, pp. 449-462.

The award of punitive damages in modern tort law gives rise to considerable anomalies. Such damages, of course, go to the private purse of the individual plaintiff and may be classified a windfall as to him in excess of his actual losses due entirely to a social judgment about defendant’s conduct.

In properly applying this law Professor McCormick, in his treatise on damages found on pages 276 and 277 in McCormick on Damages (1935), said, “Perhaps the principal advantage is that it does tend to bring to punishment a type, of cases of oppressive conduct, such as slanders, assaults, minor oppressions, and cruelties, which are theoretically criminally punishable, but which in actual practice go unnoticed by prosecutors occupied with more serious crimes. * * * The self-interest of the plaintiff leads to the actual prosecution of the claim for punitive damages, where the same motive would often lead him to refrain from the trouble incident to appearing against the wrongdoer in criminal proceedings.”

So understood, punitive damages are an adjunct to the criminal law, yet one over which the criminal law has no control, and in the United Kingdom, the land of its birth, punitive damages are close to extinct. In Rookes v. Barnard, Appeal Cases (House of Lords, 1964) 1129, at 1221 et seq., the English court of last resort confined the award of punitive damages to a very narrow range of situations. It ruled in an intentional tort case that exemplary *672damages could be awarded only in cases (1) for oppressive arbitrary, or unconstitutional acts by government servants, (2) for defendant’s conduct which had been calculated by him to make a profit for himself which might well exceed the compensation payable to the injured party, and (3) where expressly authorized by statute.

In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his claim against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the law is concerned redresses him and places him in the position he was prior to sustaining the injury. The windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.

When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime.

Furthermore, if our civil courts are to sustain such a result, it would in principle interfere with the purposes and policies of the criminal law. This would certainly be ironic since punitive damages have been thought to assist and promote those purposes, at least so far as the conduct of the defendant is concerned.

We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and attempts to make a claim to punitive damages in part on his own criminal conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would be a sufficient deterrent to the defendant or others who might intend to set such a device.

The criminal law can take whatever action is appropriate in such cases, but the civil law should not compound the breach of proper social conduct by rewarding the plaintiff for his crime. I conclude one engaged in a criminal activity is an unworthy object of largesse bestowed by punitive damages and hold the law does not support such a claim to enrichment in this case.

The admonitory function of the tort law is adequately served where the compensatory ' damages claimed are high and the granted award itself may act as a severe punishment and a deterrence. In such a case as we have here there is no need to hold out the prospect of punitive damages as an incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is not a case where defendants might profit in excess of the amount of reparation they may have to pay.

In a case of this kind there is no overwhelming social purpose to be achieved by punishing defendants beyond the compensatory sum claimed for damages.

Being convinced that there was reversible error in the court’s instructions, that the issue of intent in placing the spring gun was not clearly presented to the jury, and that the issue as to punitive damages should not have been presented to the jury, I would reverse and remand the matter for a new trial.

The majority seem to ignore the evident issue of punitive policy involved herein and uphold the punitive damage award on a mere technical rule of civil procedure.

Munson, J.

It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant’s servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that to save these from destruction or injury the plaintiff was compelled to, and did, moor the sloop to defendant’s dock; that the defendant by his servant unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff’s fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and *474his wife and children cast into the lake and upon the shore, receiving injuries.

This claim is set forth in two counts; one in trespass, charging that the defendant by his servant with force and arms wilfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine.

In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that as soon as the sheep were off his land he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground. But the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that as the defendant had done his best to recall the dog trespass would not lie.

In trespass of cattle taken in A, defendant pleaded that he was seized of C, and found the cattle there damage feasant, and chased them toward the pound, and that they escaped from him and went into A, and he presently retook them; and this was held a good plea. 21 Bdw. IV. 64; Vin. Ab. Trespass, H. a 4 pi. 19. If one have a way over the land, of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a. pl. 1.

A traveller on a highway, who finds it obstructed from a sudden and temporary cause, may pass upon the adjoining land *475without becoming a trespasser, because of the necessity. Henn’s Case, W. Jones 296; Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811.

An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a. 4, pl. 24, K. a. pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff’s beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore and was in danger of being carried off by the sea; and it was held no trespass. See also Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse’s Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff’s casket and its contents. It appeared that the ferryman of Gravesend took forty-seven passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff’s casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff’s casket out of the barge; that if the ferryman surcharge the barge the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss, to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff *476could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant’s dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insists that the counts are defective in that they fail to show that the servant, in casting off the rope, was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act; and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words “wilfully and designedly” in one count, and “negligently, carelessly and wrongfully” in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment.13 Ency. Pl. & Pr. 922; Voegeli v. Pickel Marble etc. Co., 49 Mo. App. 643; Wabash, Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See also Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

Judgment affirmed and cause remanded.

O’BRIEN, J.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs’ dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Peynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was con*458stantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to leave permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury indicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

*460Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the tailing of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J.

(dissenting).

I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents’ dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

*461In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with lewis, J.