Hill, J.

The liability of an infant for an alleged battery is presented to this court for the first time. Brian *199Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the backyard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the backyard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings:

“III. . . . that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant’s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

“IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff." (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and serious injuries. To ob*200viate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be eleven thousand dollars. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions (see Bohlen, “Liability in Tort of Infants and Insane Persons,” 23 Mich. L. Rev. 9), state that, when a minor has committed a tort with force, he is liable to be proceeded against as any other person would be. Paul v. Hummel (1868), 43 Mo. 119, 97 Am. Dec. 381; Huchting v. Engel (1863), 17 Wis. 237, 84 Am. Dec. 741; Briese v. Maechtle (1911), 146 Wis. 89, 130 N. W. 893; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent’s Commentaries 241; 27 Am. Jur. 812, Infants, § 90.

In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant’s injuries.

The trial court’s finding that Brian was a visitor in the Garratt backyard is supported by the evidence and negatives appellant’s assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

It is urged that Brian’s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

“An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if

“(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

“(b) the contact is not consented to by the other or the *201other’s consent thereto is procured by fraud or duress, and

“ (c) the contact is not otherwise privileged.”

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

“Character of actor’s intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.”

See, also, Prosser on Torts 41, § 8.

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian’s action would patently have been for the purpose or with the intent of causing the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney (1891), 80 Wis. 523, 50 N. W. 403; Briese v. Maechtle, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian’s version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the “Character of actor’s intention,” relating to clause (a) of the rule from the Restatement heretofore set forth:

“It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize *202that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this Section.”

A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin (1889), 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221. Without such knowledge, there would be nothing wrongful about Brian’s act in moving the chair, and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff’s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge, the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him, and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have *203discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian’s age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

From what has been said, it is clear that we find no merit in plaintiff’s contention that we can direct the entry of a judgment for eleven thousand dollars in her favor on the record now before us.

Nor do we find any error in the record that warrants a new trial.

What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant, furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

It is clear to us that there was no change in theory so far as the plaintiff’s case was concerned. The trial court consistently from beginning to end recognized that, if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court’s comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth, could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all the evidence the trial court can find that Brian knew with sub*204stantial certainty that the plaintiff intended to sit down where the chair had been before he moved it, and still without reference to motivation.

The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff’s counsel sought to do this by asking questions concerning statements made at Brian’s home and in a court reporter’s office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently, what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

It is argued that some courts predicate an infant’s liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion, the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

*205The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant, Brian Dailey. While Rule of Pleading, Practice, and Procedure 30 (b), 34A Wn. (2d) 91, gives the trial court the right “for good cause shown” to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading, and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment (2 Barron and Holtzoff, Federal Practice and Procedure (rules ed.), § 803; 3. Id. § 1552) and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn. L. Rev. 654.)

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

Remanded for clarification.

Schwellenbach, Donworth, and Weaver, JJ., concur.

May 3, 1955. Petition for rehearing denied.

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.

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.

JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Geraldine Gragg, individually, and as special administrator of the estate of Ann Guintola, deceased, appeals the order of the trial court of Du Page County that dismissed the first count of her third amended complaint in favor of defendant Hinsdale Hospital (Hinsdale) and counts II through IV in favor of defendants Hinsdale and physicians David Calandra and Rabindra Malhotra (collectively defendants). Plaintiff alleged that defendants administered unwanted *642medical procedures to her father, Florian Quintóla, including open heart surgery and the continuation of life support. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Plaintiff alleged the following. Hinsdale owned and operated a hospital emergency room and medical care facility, including the Rooney Heart Institute. Hinsdale employed various physicians and other health care providers to see and treat patients. Hinsdale held itself out to the public as a medical facility providing emergency, specialized cardiac care, and inpatient care by qualified and competent physicians. Hinsdale represented to the public that it provided equipment and staff, including a cardiac catheterization laboratory, “to make the most of the golden hour after a heart attack.”

On December 28, 1992, plaintiff and her mother went with Florian to the emergency room at Hinsdale where he was seen and examined by defendant doctors, who were apparent agents of Hinsdale and who led plaintiff and her mother to believe that they were agents of the hospital. Florian was examined by a physician who asked Ann to sign a consent for certain cardiac tests, including an angiogram. Plaintiff and her mother relied upon Hinsdale to provide heart catheterization equipment and staff, including reasonably qualified and competent heart specialists and physicians who would exercise due care and skill in the treatment of Florian. Plaintiff and her mother consented to catheterization by defendants as a result of such reliance. During the catheterization, performed by defendant Malhotra, Florian suffered a cardiac arrest and became unconscious and nonresponsive.

Following this, there was no reasonable likelihood that Florian would survive. Defendant Calandra and defendant J. Houck (who is not a party to this appeal) nevertheless proceeded to perform open heart bypass surgery on Florian.

Plaintiff alleged that defendants performed open heart surgery on Florian without first obtaining consent. Plaintiff also alleged that Hinsdale had a duty to Florian to permit only authorized treatment and surgical procedures with informed consent and was under a duty to obtain consent to surgery.

Florian sustained irreversible brain damage, remained nonresponsive, and could not survive without life support. Florian had a living will that stated that in the absence of his ability to give directions regarding extraordinary measures to sustain life, his family should honor his wishes to withhold such measures. Plaintiff and Ann repeatedly asked defendants to remove Florian from life support to honor his wishes. After requests were made by Florian’s regular physician to *643discontinue life support, a meeting was held with plaintiff, Ann, and others, including a nurse for defendant Calandra and an attorney for Hinsdale, to discuss Florian’s living will. Following the meeting, Dr. Glassford, the medical staff director of Hinsdale, informed plaintiff and her mother that the hospital and doctors would not honor the living will. Florian never regained consciousness and died on January 5, 1993.

Plaintiff, in her capacity as administrator of Ann’s estate and individually, brought count I of the third amended complaint against defendants under section 15 of the Rights of Married Persons Act (herein called the Family Expense Act) (750 ILCS 65/15 (West 1996)). Count II, brought by the estate, alleges that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)). Counts III, brought by plaintiff individually, and IX brought by the estate, are based on intentional infliction of emotional distress. Defendants filed separate motions to dismiss. The trial court dismissed counts I through IV of the complaint against Hinsdale with prejudice. The trial court also dismissed counts II through IV against the other defendants with prejudice, finding that there was no just cause for delay of enforcement or appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Count I against defendant physicians remains pending in the trial court. Plaintiff timely appeals.

We note that defendants’ motions to dismiss were made pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615, 2 — 619 (West 1996)). The legal theories for proceeding on a motion to dismiss under sections 2 — 615 and 2 — 619 differ. A section 2 — 615 attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action upon which relief can be granted. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994). Under section 2 — 619, a party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. T&S Signs, Inc., 261 Ill. App. 3d at 1083. Similar to a motion brought under section 2 — 615, a motion to dismiss under section 2 — 619 admits all well-pleaded facts. Geick v. Kay, 236 Ill. App. 3d 868, 874 (1992). A reviewing court is not required to defer to the trial court’s judgment on a motion to dismiss, and we will review the matter de novo. T&S Signs, Inc., 261 Ill. App 3d at 1084.

Plaintiff first contends that the trial court improperly dismissed count I against Hinsdale. In count I, plaintiff seeks recovery individually and as special administrator of Ann’s estate for hospital expenses incurred by Florian under the Family Expense Act.

*644Initially, we note that plaintiff individually lacks standing to bring a claim under the Family Expense Act. Expenses of the family are those for which the husband and wife are liable. 750 ILCS 65/15 (West 1996). Thus, only a spouse may maintain an action against a tortfeasor under the statute for family expenses incurred due to injuries the victim’s spouse sustained. See Brown v. Metzger, 118 Ill. App. 3d 855, 860 (1983). Just as parents cannot maintain an action for expenses incurred by their adult children, adult children may not maintain an action for their parents’ medical bills. See Rodgers v. Consolidated R.R. Corp., 136 Ill. App. 3d 191, 196 (1985). Here, plaintiff does not plead that she is obligated individually to pay Florian’s medical expenses and therefore cannot bring an individual claim under the Family Expense Act. The trial court properly dismissed count I as to plaintiff individually.

Plaintiff as special administrator of Ann’s estate alleged two separate injuries under count I. The first injury is based on the open heart bypass surgery performed without consent. The second injury arose from placing Florian on life support without consent. Plaintiff alleged that had she or Ann been informed of the proposed open heart surgery and Florian’s condition, they would have withheld their consent for the surgery and life support measures. Plaintiff alleges that, as a direct and proximate result of defendants’ actions of performing surgery without consent and refusing to discontinue life support, Ann became obligated for medical expenses. Hinsdale counters that the cause of action under the Family Expense Act does not survive the death of Ann. Hinsdale contends that, if a cause of action is created by statute and neither that statute nor any other provides for its survival, the action abates upon the death of the party, citing Shapiro v. Chernoff, 3 Ill. App. 3d 396 (1972). Hinsdale argues that, because neither the Family Expense Act nor the Survival Act (755 ILCS 5/27 — 6 (West 1996)) provides a remedy for survival, the action abated on the death of Ann. We disagree.

The law determining the abatement or survival of actions is governed by common-law rules and statutory provisions changing the common law. Shapiro, 3 Ill. App. 3d at 401. Application of the correct rule depends upon the nature of the action to which it is applied. Therefore, we must characterize the theory of recovery that plaintiff alleges in count I.

Here, plaintiff alleges that Hinsdale wrongfully caused medical expenses to be incurred. Plaintiff is not seeking recovery for Florian’s injuries but, rather, plaintiff seeks a property right to recover expenses based on the hospital’s liability. The Family Expense Act did not create the liability; it merely provides a mechanism for recovery. Where *645recovery does not rest on the statute but upon a property right, it survives. See, e.g., McDaniel v. Bullard, 34 Ill. 2d 487, 491-92 (1966). Thus, we find that the action is not dependent upon Ann’s survival. We now proceed with our review of the trial court’s dismissal of count I against Hinsdale.

Hinsdale argues that the trial court correctly found that count I was grounded on healing art malpractice, for which a section 2 — 622 health professional report (735 ILCS 5/2 — 622 (West 1996)) must be attached. Hinsdale contends that the physician’s report submitted by plaintiff insufficiently complied with the proper standards. Plaintiff argues that the underlying action sounds in battery because the open heart surgery and life support were given without consent and, therefore, a section 2 — 622 report is unnecessary. We agree.

Liability for battery emphasizes the plaintiffs lack of consent to a touching. Cohen v. Smith, 269 Ill. App. 3d 1087, 1090 (1995). A defendant may be liable not only for contacts that do actual physical harm, but also for those relatively trivial ones that are merely offensive and insulting. Cohen, 269 Ill. App. 3d at 1091. “[A] plaintiff is entitled to demand that the defendant refrain from the offensive touching, although the contact results in no visible injury.” W. Keeton, Prosser & Keeton on Torts § 9, at 41 (5th ed. 1984).

We held in Kus v. Sherman Hospital, 268 Ill. App. 3d 771, 779 (1995), that the plaintiffs medical battery claim was viable under Illinois law. We recognized that in Illinois two causes of action exist for lack of consent to medical procedures. One action is based on negligence and the other is based on battery. Kus, 268 Ill. App. 3d at 779. In Guebard v. Jabaay, 117 Ill. App. 3d 1, 7 (1983), the court held that where an unauthorized surgeon operates, he commits a technical trespass to the patient resulting in the intentional tort of battery. It is not the hostile intent of the defendant but rather the absence of consent by the plaintiff that is at the core of an action for battery. Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1012 (1988).

Plaintiffs complaint alleges that Hinsdale operated on Florian without consent and maintained Florian on life support against the wishes expressed in his living will and his family’s wishes. Here, the violation of a plaintiffs right to bodily and personal integrity by an unconsented-to touching is the essence of the claim for battery. By stating that surgery and treatment were performed without consent, plaintiff has stated a claim for medical battery. See Grant v. Petroff, 291 Ill. App. 3d 795, 804-05 (1997); Cohen, 269 Ill. App. 3d at 1090-93; Kus, 268 Ill. App. 3d at 779.

Moreover, it is clear that plaintiff does not allege any deviation from the appropriate medical standards. Plaintiffs claim under count *646I against the hospital is not based upon medical malpractice. Consequently, it is unnecessary to provide a section 2 — 622 report.

Hinsdale contends that it did not have the duty to obtain consent to perform the surgery and therefore cannot be liable. Under ordinary negligence principles, it generally is the duty of the physician, not the hospital, to obtain consent. Pickle v. Curns, 106 Ill. App. 3d 734, 738 (1982). In this instance, the alleged liability arises from an unconsented-to touching.

Furthermore, under the doctrine of apparent authority, a hospital can be held vicariously liable for the negligent acts of a physician providing care at a hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 524 (1993). In Gilbert, the decedent’s estate brought a medical malpractice and wrongful death action against the doctor who treated the decedent and the hospital. The hospital contended that it was not vicariously liable for the doctor’s alleged negligence because he was not the hospital’s agent or employee. In so holding, the supreme court, concerned with the realities of modern hospital care, held:

“ ‘[Hjospitals increasingly hold themselves out to the public in expensive advertising campaigns as offering and rendering quality health services ***. Modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities. All of these expenditures have but one purpose: to persuade those in need of medical services to obtain those services at a specific hospital.’ ” Gilbert, 156 Ill. 2d at 520, quoting Kashishian v. Port, 167 Wis. 2d 24, 38, 481 N.W.2d 277, 282 (1992).

The court further observed that modern hospital care involves the reasonable expectations of the public:

“ ‘[Generally people who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there. Absent a situation where the patient is directed by his own physician or where the patient makes an independent selection as to which physicians he will use while there, it is the reputation of the hospital itself upon which he would rely. Also, unless the patient is in some manner put on notice of the independent status of the professionals with whom it might be expected to come into contact, it would be natural for him to assume that these people are employees of the hospital.’ ” Gilbert, 156 Ill. 2d at 521, quoting Arthur v. St. Peters Hospital, 169 N.J. Super. 575, 583, 405 A.2d 443, 447 (1979).

Under the doctrine of apparent authority, a hospital can be held *647vicariously liable for the negligent acts of a physician providing care at the hospital. We see no reason why this reasoning should not apply to an intentional tort, as in this case, where, under the guise of apparent authority, an agent commits an intentional tort while furthering the business of the principal. See Bonnem v. Harrison, 17 Ill. App. 2d 292, 298-99 (1958).

Hinsdale next argues that it cannot be liable for the acts of the defendant physicians because plaintiff failed to properly plead a principal-agent relationship. Hinsdale argues that, other than alleging that the hospital represented to the public that it provided equipment, staff, and emergency care by the physicians, plaintiff made no specific allegations about how the hospital held out the physicians as its agents.

The supreme court in Gilbert also rejected a similar argument. There, the plaintiff simply alleged that the physician was an agent or employee of the hospital. Gilbert, 156 Ill. 2d at 527. Here, plaintiff alleges that the physician defendants were apparent agents of Hinsdale, did not advise plaintiff otherwise, and led plaintiff to believe that they were agents of Hinsdale. We find plaintiff adequately pleaded apparent agency. Accordingly, we reverse the trial court’s dismissal of count I against Hinsdale brought by plaintiff in her capacity as administrator of Ann’s estate. We reiterate that the trial court properly dismissed count I as to plaintiff individually. In all other respects, count I against defendant physicians remains.

Plaintiff next argues that the trial court improperly dismissed count II against all defendants for a violation of section 2 of the Consumer Fraud Act (815 ILCS 505/2 (West 1996)). Defendants counter that any action under the Consumer Fraud Act abated at Florian’s death; that, even if the claim survives, the condüct arising out of the practice of medicine is not a “trade or commerce” within the meaning of the Act; and that the allegations fail to state a claim for such relief because they allege medical malpractice and only tangentially relate to the business aspects of the medical profession.

•10 In order to state a cause of action under the Consumer Fraud Act, a complaint must set forth specific facts that show a deceptive act or misrepresentation of a material fact by the defendant, the defendant’s intention that the plaintiff rely on the deception or misrepresentation, and that the deception or misrepresentation occur in the course of business. Connick v. Suzuki Motor Co., 174 111. 2d 482, 501 (1996); People ex rel. Hartigan v. E&E Hauling, Inc., 153 111. 2d 473, 492 (1992). The complaint must set forth specific facts that establish each element of the claim. E&E Hauling, 153 111. 2d at 492. The representations can only be material if some connection is shown be*648tween those representations and the injury. E&E Hauling, 153 Ill. 2d at 492. The deceptive statements must proximately cause the alleged injury. Connick v. Suzuki Motor Co., 275 Ill. App. 3d 705, 722 (1995).

We find that plaintiff fails to state a claim for relief under the Consumer Fraud Act. Plaintiff alleges that Hinsdale and defendants represented to the public that patients for cardiology services would promptly receive care for cardiac patients who would be in surgery within an hour. Plaintiff further alleges that defendants had a complete cardiovascular center with a catheterization lab and would help patients choose the right doctor. However, plaintiff does not specify how the advertisements were false or deceptive or how the advertisements caused any damages. Plaintiff fails to show a connection between those representations and the injury that surgery was performed without consent and that Florian was placed on life support against his permission. In short, plaintiff simply does not allege a deceptive act or misrepresentation by defendants that was made with the intent that plaintiff rely upon them. Accordingly, we find that the trial court properly dismissed count II, as there are no allegations supporting the conclusion that the misrepresentations made by defendants were fraudulent or that the injury resulted from them.

Plaintiff next contends that the trial court improperly dismissed the intentional infliction of emotional distress claims set forth in counts III and IV of her complaint. Count III was brought in plaintiffs individual capacity, and count IV was brought in plaintiffs capacity as special administrator of her mother’s estate.

To state a claim for intentional infliction of emotional distress, the plaintiff must allege that the defendant engaged in extreme and outrageous conduct; that the defendant acted with the intent or knowledge that there was at least a high probability that his or her conduct would inflict severe emotional distress and with the reckless disregard of that probability; and that the plaintiff experienced severe emotional distress. Public Finance Corp. v. Davis, 66 Ill. 2d 85, 89-90 (1976). These factors must be applied on a case-by-case basis, and the determination of whether the conduct is actionable is to be made pursuant to an objective standard. Miller v. Linden, 172 Ill. App. 3d 594, 596-97 (1988). The distress inflicted must be so severe that no reasonable man could be expected to endure it. McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988).

Plaintiff alleged that defendants “verbally abused” and “repeatedly insult[ed] and injure[d]” and “wilfully and wantonly inflict[edj” severe emotional distress on her and her mother by repeatedly accusing them in a public area in the presence of others of trying to kill Florian; by continuing life support without good cause, knowing *649that plaintiff and her mother were under emotional distress; by refusing to honor Florian’s living will and family requests, knowing that their refusals were themselves causing plaintiff and her mother great emotional distress; and by refusing to perform an EEG test or to report the results of such a test, knowing that the test would likely confirm that there was no brain activity.

Plaintiff relies on Wall v. Pecaro, 204 Ill. App. 3d 362 (1990). In that case, the plaintiff sought medical treatment from the defendant regarding a tumorous growth in the roof of her mouth. The defendant knew that the plaintiff did not have cancer but recommended that the plaintiff submit to unnecessary surgery that would have resulted in the removal of half of the plaintiffs face and the loss of her fetus. The defendant repeatedly told her that if she failed to undergo the procedures, her cancer would spread rapidly. After the plaintiff told the defendant that he was discharged, the defendant continued to insist that she allow him to perform the procedures, and he even called her at home. The court found the defendant’s conduct outrageous because the defendant knew or had reason to know that the plaintiff was peculiarly susceptible to emotional distress due to her pregnancy, especially in light of the fact that the procedures he recommended would have resulted not only in the loss of her viable fetus but also the loss of half her face. Wall, 204 Ill. App. 3d at 368-69.

Plaintiff also relies on Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1 (1992), and Cohen, 269 Ill. App. 3d 1087. The defendant in Kolegas knew that the plaintiffs wife and child were afflicted with “Elephant Man’s” disease and that the plaintiffs were promoting a festival to promote public awareness of the disease, yet he made statements during a radio program implying, among other things, that the plaintiffs wife was so hideous no one would marry her except under duress. Similarly, the defendant in Cohen knew that, because of the restrictions placed on the plaintiff by her religion, the plaintiff would be particularly susceptible to emotional distress if the defendant did not abide by those restrictions, yet the defendant allowed a male nurse to view and touch the plaintiff. Cohen, 269 Ill. App. 3d at 1095-96.

Plaintiff alleges that she and her mother were in such an emotional state because of Florian’s condition that they were more susceptible to emotional distress and that defendants’ conduct adversely affected their emotional state. Like the defendants in Wall, Kolegas, and Cohen, defendants in this case knew or had reason to know that plaintiff and Ann were extremely distraught because of Florian’s condition, yet defendants repeatedly accused plaintiff and her mother of trying to kill Florian. Under the circumstances, there was a high probability that severe emotional distress would follow, but *650defendants consciously disregarded it. We agree with plaintiff that this conduct could be deemed outrageous by a jury.

Defendants argue that they had a legitimate objective in sustaining Florian’s life. Although a defendant may reasonably believe that his objective is legitimate, it does not provide him with carte blanche to pursue that objective by outrageous means. McGrath, 126 Ill. 2d at 88. In the present context, considering the emotional state of plaintiff and her mother and that defendants knew or should have known of their emotional state, defendants’ actions of accusing plaintiff and her mother of trying to kill Florian could be considered so mortifying and callous as to amount to outrageous conduct. We find that plaintiff adequately alleged an extreme and outrageous course of action. Accordingly, the trial court erred in dismissing counts III and IV against defendants for intentional infliction of emotional distress.

In closing, we note that, because counts III and IV are based on an intentional tort, the doctrine of transferred negligence is inapplicable and there is no need to file a section 2 — 622 report. However, punitive damages may not be assessed as an additional recovery where the conduct arises from intentional infliction of emotional distress. Knierim v. Izzo, 22 Ill. 2d 73, 87-88 (1961); Morrison v. Sandell, 112 Ill. App. 3d 1057, 1060 (1983).

For the foregoing reasons, that part of the judgment of the circuit court of Du Page County that dismissed count I brought by plaintiff as administrator of Ann’s estate against Hinsdale is reversed, and the cause is remanded for further proceedings consistent with this order. That part of the judgment of the circuit court of Du Page County that dismissed count II against defendants is affirmed. That part of the judgment of the circuit court of Du Page County that dismissed counts III and IV is reversed, and the cause is remanded with directions to strike those portions of counts III and IV asking for punitive damages.

Affirmed in part and reversed in part; cause remanded with directions.

COLWELL and HUTCHINSON, JJ., concur.

DEKLE, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, Spivey v. Battaglia, Fla.App., 242 So.2d 477 (1971). It will be seen below that there is a misapplication and therefore conflict with McDonald v. Ford, Fla.App., 223 So.2d 553 (2d DCA Fla.1969), vesting jurisdiction here under Fla.Const. art. V, § 4, F.S.A.1

Petitioner (plaintiff in the trial court) and respondent (defendant) were employees of Battaglia Fruit Co. on January 21, 1965. During the lunch hour several employees of Battaglia Fruit Co., including petitioner and respondent, were seated on a work table in the plant of the company. Respondent, in an effort to tease petitioner, whom he knew to be shy, intentionally put his arm around petitioner and pulled her head toward him. Immediately after this “friendly unsolicited hug,” petitioner suffered a sharp pain in the back of her neck and ear, and sharp pains into the base of her skull. As a result, petitioner was paralyzed on the left side of her face and mouth.

An action was commenced in the Circuit Court of Orange County, Florida, wherein the petitioners, Mr. and Mrs. Spivey, brought suit against respondent for, (1) negligence, and (2) assault and battery. Respondent, Mr. Battaglia, filed his answer raising as a defense the claim that his “friendly unsolicited hug” was an assault and battery as a matter of law and was barred by the running of the two-year statute of limitations on assault and battery. Respondent’s motion for summary judgment was granted by the trial court on this basis. The district court affirmed on the authority of McDonald v. Ford, supra.

The question presented for our determination is whether petitioner’s action could be maintained on the negligence count, or whether respondent’s conduct amounted to an assault and battery as a matter of law, which would bar the suit under the two-year statute (which had run).

In McDonald the incident complained of occurred in the early morning hours in a home owned by the defendant. While the plaintiff was looking through some records, the defendant came up behind her, laughingly embraced her and, though she resisted, kissed her hard. As the defendant was hurting the plaintiff physically by his embrace, the plaintiff continued to struggle violently and the defendant continued to laugh and pursue his love-making attempts. In the process, plaintiff struck her face hard upon an object that she was unable to identify specifically. With those facts before it, the district court held that what actually occurred was an assault and battery, and not negligence. The court quoted with approval from the Court of Appeals of Ohio in Williams v. Pressman, 113 N.E.2d 395, at 396 (Ohio App.1953):

"... an assault and battery is not negligence, for such action is intentional, while negligence connotes an unintentional act.”

The intent with which such a tort liability as assault is concerned is not *817necessarily a hostile intent, or a desire to do harm. Where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it.2 It would thus be an assault (intentional). However, the knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. Thus, the distinction between intent and negligence boils down to a matter of degree. “Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid (negligence), and becomes a substantial certainty.”3 In the latter case, the intent is legally implied and becomes an assault rather than unintentional negligence.

The distinction between the unsolicited kisses in McDonald, supra, and the unsolicited hug in the present case turns upon this question of intent. In McDonald, the court, finding an assault and battery, necessarily had to find initially that the results of the defendant’s acts were “intentional.” This is a rational conclusion in view of the struggling involved there. In the instant case, the DCA must have found the same intent. But we cannot agree with that finding in these circumstances. It cannot be said that a reasonable man in this defendant’s position would believe that the bizarre results herein were “substantially certain” to follow. This is an unreasonable conclusion and is a misapplication of the rule in McDonald. This does not mean that he does not become liable for such unanticipated results, however. The settled law is that a defendant becomes liable for reasonably foreseeable consequences, though the exact results and damages were not contemplated.4

Acts that might be considered prudent in one case might be negligent in another. Negligence is a relative term and its existence must depend in each case upon the particular circumstances which surrounded the parties at the time and place of the events upon which the controversy is based.5

The trial judge committed error when he granted summary final judgment in favor of the defendant. The cause should have been submitted to the jury with appropriate instructions regarding the elements of negligence. Accordingly, certio-rari is granted; the decision of the district court is hereby quashed and the cause is remanded with directions to reverse the summary final judgment.

It is so ordered.

ROBERTS, C. J., and ERVIN ánd ADKINS, JJ., concur.

BOYD, J., dissents.

RAWLS, District Court Judge, dissents with opinion.

RAWLS, District Court Judge

(dissenting) :

I would discharge writ heretofore issued.

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.

WEBB, Judge.

[1] At the outset, we are faced with the question of the procedure used by the superior court to reach a judgment in this case. The parties at a pretrial conference stipulated what the evidence most favorable to the plaintiff would be. On the basis of *216this stipulation, the court dismissed the action and the plaintiff appealed. We hold this is a proper way for the court to enter a judgment from which an appeal may be taken. We rely on Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E. 2d 557 (1962); Wimberly v. Parrish, 253 N.C. 536, 117 S.E. 2d 472 (1960) and Rochlin v. Construction Co., 234 N.C. 443, 67 S.E. 2d 464 (1951). Those cases state the rule to be: “[W]here a judge intimates an opinion on the law which lies at the foundation of the action, adverse to the plaintiff, or excludes evidence offered by the plaintiff which is material and necessary to make out his case, he may submit to a nonsuit and appeal.” Rochlin, supra, at 444-45. In Pickelsimer and Rochlin, the trial judge intimated an opinion that the plaintiffs’ complaints did not state causes of action. In Wimberly, the court intimated an opinion as to the sufficiency of the evidence. We believe it is precedent for the procedure used by Judge Thornburg in this case.

Although the court below made detailed findings of fact in its order, we are not bound by them. The parties stipulated and made a part of the record what the plaintiff’s evidence would tend to show. It is from this stipulation as to what the evidence would be that we must determine whether there is enough evidence to be submitted to the jury to support a claim for assault and battery.

[2] We have found no case with a factual situation which controls this case. North Carolina follows the common law principles in the civil actions of assault and battery. See 1 Strong, N.C. Index 3d, Assault and Battery, § 1, p. 463, et seq. and the cases cited therein. See also W. Prosser, Handbook of the Law of Torts (4th Ed. 1971), p. 34, et seq. We rely on these cases and this textbook authority for the principles governing this case. It has been said that assault and battery which are two separate common law actions “go together like ham and eggs.” The interest in freedom from apprehension of a harmful or offensive contact with the person is protected by the action for assault. The interest in freedom from intentional and unpermitted contacts with the plaintiff’s person is protected by the action for battery. It is not necessary that the contact be brought about by a direct application of force. It is enough that the defendant set a force in motion which ultimately produces the result. The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent *217to the contact on the part of the plaintiff. At the same time, in a crowded world, a certain amount of personal contact is inevitable and must be accepted. Consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life. Smelling smoke from a cigar being smoked by a person in his own office would ordinarily be considered such an innocuous and generally permitted contact. In this case there is the added factor that the defendant was on notice that the smelling of cigar smoke was personally offensive to the plaintiff who considered it injurious to his health. In examining the plaintiff’s claim, we observe that it has been said “it may be questioned whether any individual can be permitted, by his own fiat, to erect a glass cage around himself, and to announce that all physical contact with his person is at the expense of liability.” See Prosser on Torts, supra, at 37.

From a reading of what the plaintiff’s evidence would tend to show, we can find no evidence that the plaintiff suffered any physical illness from inhaling the cigar smoke. Each of the doctor’s statements says the plaintiff is allergic to tobacco smoke, but neither says that the smoking of the cigars by defendant on 3 April 1975 or 13 May 1975 could have caused a physical illness to plaintiff. There is nothing in the record to show what the plaintiff’s own testimony would have been. The statements of the other witnesses do not go to the question of any physical illness to the plaintiff resulting from inhaling cigar smoke. There being no competent evidence that the plaintiff suffered a physical illness from smelling the cigar smoke, we are left with evidence that defendant smoked cigars in his own office when he knew it was obnoxious to a person in the room for him to do so. That person did experience some mental distress as a result of inhaling the cigar smoke. We hold this is not enough evidence to support a claim for assault or battery.

We express no opinion as to what the result would be if there were evidence of some physical injury, but on the facts of this case we cannot hold it is an assault or battery for a person to be subjected either to the apprehension of smelling cigar smoke or the actual inhaling of the smoke. This is an apprehension of a touching and a touching which must be endured in a crowded world.

*218Affirmed.

Judges Parker and Arnold concur.

*234 Per Curiam.

The plaintiff-appellant, Ahron Leichtman, appeals from the trial court’s order dismissing his complaint against the defendants-appellees, WLW Jacor Communications (“WLW”), William Cunningham and Andy Furman, for battery, invasion of privacy, and a violation of Cincinnati Bd. of Health Reg. No. 00083. In his single assignment of error, Leichtman contends that his complaint was sufficient to state a claim upon which relief could be granted and, therefore, the trial court was in error when it granted the defendants’ Civ.R. 12(B)(6) motion. We agree in part.

In his complaint, Leichtman claims to be “a nationally known” antismoking advocate. Leichtman alleges that, on the date of the Great American Smokeout, he was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show host, lit a cigar and repeatedly blew smoke in Leichtman’s face “for the purpose of causing physical discomfort, humiliation and distress.”

Under the rules of notice pleading, Civ.R. 8(A)(1) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” When construing a complaint for failure to state a claim, under Civ.R. 12(B)(6), the court assumes that the factual allegations on the face of the complaint are true. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. For the court to grant a motion to dismiss, “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” Id. A court cannot dismiss a complaint under Civ.R. 12(B)(6) merely because it doubts the plaintiff will prevail. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 69 O.O.2d 178, 318 N.E.2d 557. Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal. Id. at 182, 69 O.O.2d at 180, 318 N.E.2d at 560.

Leichtman contends that Furman’s intentional act constituted a battery. The Restatement of the Law 2d, Torts (1965), states:

“An actor is subject to liability to another for battery if

“(a) he acts intending to cause a harmful or offensive contact with the person of the other, and

“(b) a harmful contact with the person of the other directly or indirectly results[; or]1

*235“[c] an offensive contact with the person of the other directly or indirectly results.”2 (Footnote added.)

In determining if a person is liable for a battery, the Supreme Court has adopted the rule that “[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact.” Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167. It has defined “offensive” to mean “disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.” State v. Phipps (1979), 58 Ohio St.2d 271, 274, 12 O.O.3d 273, 275, 389 N.E.2d 1128, 1131. Furthermore, tobacco smoke, as “particulate matter,” has the physical properties capable of making contact. R.C. 3704.01(B) and 5709.20(A); Ohio Adm.Code 3745-17.

As alleged in Leichtman’s complaint, when Furman intentionally blew cigar smoke in Leichtman’s face, under Ohio common law, he committed a battery. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar. Lacey v. Laird (1956), 166 Ohio St. 12, 1 O.O.2d 158, 139 N.E.2d 25, paragraph two of the syllabus. The rationale is explained by Roscoe Pound in his essay “Liability”: “[I]n civilized society men must be able to assume that others will do them no intentional injury — that others will commit no intentioned aggressions upon them.” Pound, An Introduction to the Philosophy of Law (1922) 169.

Other jurisdictions also have concluded that a person can commit a battery by intentionally directing tobacco smoke at another. Richardson v. Hennly (1993), 209 Ga.App. 868, 871, 434 S.E.2d 772, 774-775. We do not, however, adopt or lend credence to the theory of a “smoker’s battery,” which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. Ezra, Smoker Battery: An Antidote to Second-Hand Smoke (1990), 63 S.Cal.L.Rev. 1061, 1090. Also, whether the “substantial certainty” prong of *236intent from the Restatement of Torts translates to liability for secondary smoke via the intentional tort doctrine in employment cases as defined by the Supreme Court in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus, need not be decided here because Leichtman’s claim for battery is based exclusively on Furman’s commission of a deliberate act. Finally, because Leichtman alleges that Furman deliberately blew smoke into his face, we find it unnecessary to address offensive contact from passive or secondary smoke under the “glass cage” defense of McCracken v. Sloan (1979), 40 N.C.App. 214, 217, 252 S.E.2d 250, 252, relied on by the defendants.

Neither Cunningham nor WLW is entitled to judgment on the battery claim under Civ.R. 12(B)(6). Concerning Cunningham, at common law, one who is present and encourages or incites commission of a battery by words can be equally liable as a principal. Bell v. Miller (1831), 5 Ohio 250; 6 Ohio Jurisprudence 3d (1978) 121-122, Assault, Section 20. Leichtman’s complaint states, “At Defendant Cunningham’s urging, Defendant Furman repeatedly blew cigar smoke in Plaintiffs face.”

With regard to WLW, an employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329-330, 587 N.E.2d 825, 828-829. However, whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact. Id. at 330, 587 N.E.2d at 825. Accordingly, Leichtman’s claim for battery with the allegations against the three defendants in the second count of the complaint is sufficient to withstand a motion to dismiss under Civ.R. 12(B)(6).

By contrast, the first and third counts of Leichtman’s complaint do not state claims upon which relief can be granted. The trial court correctly granted the Civ.R. 12(B)(6) motion as to both counts. In his first count, Leichtman alleged a tortious invasion of his privacy. See, generally, Restatement, supra, at 376, Section 652B, as adopted by Sustin v. Fee (1982), 69 Ohio St.2d 143, 145, 23 O.O.3d 182, 183-184, 431 N.E.2d 992, 993. A claim for invasion of privacy may involve any one of four distinct torts. Prosser, Privacy (1960), 48 Cal.L.Rev. 383. The tort that is relevant here requires some substantial intrusion into a plaintiffs solitude, seclusion, habitation, or affairs that would be highly offensive to a reasonable person. See, e.g., Restatement, supra, at 378-379, Section 652B, Comments a to d; Killilea v. Sears Roebuck & Co. (1985), 27 Ohio App.3d 163, 166, 27 OBR 196, 198-199, 499 N.E.2d 1291, 1294. Leichtman acknowledges that he willingly entered the WLW radio studio to make a public radio appearance with Cunningham, who is known for his blowtorch rhetoric. Therefore, Leicht*237man’s allegations do not support his assertion that Furman, Cunningham, or WLW intruded into his privacy.

In his third count, Leichtman attempts to create a private right of action for violation of Cincinnati Bd. of Health Reg. No. 00083, which makes it illegal to smoke in designated public places. Even if we are to assume, for argument, that a municipal regulation is tantamount to public policy established by a statute enacted by the General Assembly, the regulation has created rights for nonsmokers that did not exist at common law. Bd. of Health Reg., supra, at Sections 00083-7 and 00083-13. Therefore, because sanctions also are provided to enforce the regulation, there is no implied private remedy for its violation. R.C. 3707.99, 3707.48(C); Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90; Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 248-250, 75 O.O.2d 291, 293-294, 348 N.E.2d 144, 147 (superseded by statute on other grounds).

Arguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They delay cases that are important to individuals and corporations and that involve important social issues. The result is justice denied to litigants and their counsel who must wait for their day in court. However, absent circumstances that warrant sanctions for frivolous appeals under App.R. 23, we refuse to limit one’s right to sue. Section 16, Article I, Ohio Constitution states, “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”

This case emphasizes the need for some form of alternative dispute resolution operating totally outside the court system as a means to provide an attentive ear to the parties and a resolution of disputes in a nominal case. Some need a forum in which they can express corrosive contempt for another without dragging their antagonist through the expense inherent in a lawsuit. Until such an alternative forum is created, Leichtman’s battery claim, previously knocked out by the trial judge in the first round, now survives round two to advance again through the courts into round three.

We affirm the trial court’s judgment as to the first and third counts of the complaint, but we reverse that portion of the trial court’s order that dismissed the battery claim in the second count of the complaint. This cause is remanded for further proceedings consistent with law on that claim only.

Judgment accordingly.

Doan, P.J., Hildebrandt and Gorman, JJ., concur.

Savage, J.

'Action for false imprisonment. The plaintiff recovered a verdict for $1100. The case comes up on defendant’s exceptions and motion for a new trial.

The case shows that for several years prior -to 1910, at a locality called “Shiloh” in Durham in this State there had been gathered together a religious sect, of which the defendant was at least the religious leader. They dwelt in a so called colony. There was a similar' colony under the same religious leadership at Jaffa, in Syria. The plaintiff was a member of -this sect, and her husband *79was one of its ministers. For the promotion of the work of the “movement” as it is called, a Yacht Club was incorporated, of which the defendant was president. The Yacht Club owned two sailing yachts, the ‘.‘Kingdom” and the “Coronet.” So far as this case is concerned, these yachts were employed in transporting members of the movement, back and forth, between the coast of Maine and Jaffa.

The plaintiff, with her four children, sailed on the Coronet to Jaffa in 1905. Her husband was in Jerusalem, but came to Jaffa, and there remained until he sailed, a year later, apparently to America. The plaintiff lived in Jerusalem and Jaffa, as a member of the colony, until March, 1909. At that time she decided to abandon the movement, and from that time on ceased to take part in its exercises, or to be recognized as a member. She made her preparations to return to America by steamer, but did not obtain the necessary funds therefor until December 24, 1909. At that time the Kingdom was in the harbor at Jaffa, and the defendant was on board. On Christmas day he sent a messenger to ask the plaintiff to come on board. She went, first being assured by the messenger, that she should be returned to shore. The defendant expressed a strong desire that she should come back to America on the " Kingdom, rather than in a steamer, saying, as she says, that he could not bear the sting of having her come home by steamer, he having taken her out. The plaintiff fearing, as she says, that if she came on board the defendant’s yacht she would not be let off until she was “won to the movement” again, discussed that subject with the defendant, and he assured her repeatedly that under no circumstances would she be detained on board the vessel after they got into port, and that she should be free to do what she wanted to the moment they reached shore. Relying upon this promise, she boarded the Kingdom on December 28, and sailed for America. She was treated as a guest, and with all respect. She had her four children with her. The defendant was also on board.

The Kingdom arrived in Portland Harbor on the afternoon of Sunday, May 8, 1910. The plaintiff’s husband, who was at Shiloh, was telephoned to by someone, and went at once to Portland Harbor, reaching the yacht about midnight of the same day. The *80Coronet was also in Portland Harbor at that time. Later both yachts sailed to -South Freeport, reaching there Tuesday morning, May io. From this time until June 6 following the plaintiff claims that she was prevented from leaving the Kingdom, by the defendant, in such manner as to constitute false imprisonment.

The Exceptions.

i. The first exception relied upon relates to the admissibility of the record of habeas corpus proceedings, by virtue of which the plaintiff was removed from the Kingdom- by a sheriff on June 6, and under which she was discharged later. This record was admitted subject to the defendant’s objection and exception. Further, the presiding Justice was requested to instruct -the jury that the habeas corpus proceedings were inadmissible, and must be entirely disregarded by them. The presiding Justice declined to give the requested instruction, saying, “I have said all that I desire in regard to the habeas corpus. You have the right to consider the fact as bearing on the conduct of the plaintiff and the situation under which she had applied for it.” The presiding Justice in his charge had already said: “It -is my duty to say to you that that [the discharge of the plaintiff on habeas corpus] is not a judicial determination of the question involved here. The defendant would not be bound by that adjudication of a single Justice under the circumstances of this case, there being no notice to him and he having no opportunity to be heard upon it. You have a right, I say to you, for the purposes of this trial, to consider the fact that she did resort to this petition of habeas corpus to obtain her release as bearing upon the testimony and all the circumstances surrounding her at that time as tending to show that she was restrained of her liberty.” To this refusal to instruct, the defendant took an exception. These exceptions will be considered together.

The case shows that on June 4, 1910, application was made to a Justice of this court for a writ o-f habeas corpus to take, and bring before the court, the plaintiff and -her four minor children, who it was alleged were restrained of their liberty on a certain yacht named Kingdom by the defendant, or by the captain or commanding officer of said Kingdom, or by the person or persons in charge of said Kingdom. The application was made by one Harriman, *81under the provisions of R. S., 'Chap, ioi, Section 4, which provides that application may be made “by any person.” The Justice ordered “writ to issue as prayed for, returnable before me at the Court House in Auburn, and to be heard on Wednesday, June 8, 1910, 2 P. M.” The form prescribed by statute for such a writ contains the following direction to the officer, “and summon the said A. B. [the person alleged to be holding the party in restraint] then and there to appear before our said court, to show cause for taking and detaining said C. D. [the party restrained].” R. S., Chap. 101, Sect. 18. The order for the writ to issue therefore necessarily embraced the direction in the writ to the officer to “summon the defendant.” No further order of notice was necessary. But in the writ, as issued by the clerk, the clause commanding the officer to “summon” the defendant was omitted. The officer took the writ and proceeded to the Kingdom, then lying about three miles off shore. He exhibited the writ to the plaintiff’s husband, to whom, it is now claimed by the defendant, he had committed the care of, and responsibility for, the plaintiff. Mr. Whittaker read it. The commanding officer asked to take the writ, in order that the stenographer could make a copy of it. This request was complied with. But no service of the writ was made on either the defendant or the commanding officer. The defendant himself was not then on board the Kingdom, but was on the Coronet, lying not far away. The officer took the plaintiff and children, and carried them before the Justice, who after hearing discharged them. The defendant did not attend the hearing. But Mr. Whittaker, the plaintiffs husband, went to Auburn, and was in the Court House when the hearing was had, but did not go into the room where it was being held.

It is not necessary now to consider the propriety or legality of the discharge, in the absence of notice to the defendant. The presiding Justice correctly instructed the jury that it was not a judicial determination of the question involved in this case, which was whether the defendant had wrongfully restrained the plaintiff of her liberty. He expressly instructed the jury also that the defendant was not bound by the adjudication. In considering the exception we must assume that the jury heeded the instruction. Limited in its application as it was by the presiding Justice, we think the *82record was admissible. In the first place, it was proper for the plaintiff to show when and how she obtained her liberty. It is so closely connected with the question of restraint as to be practically inseparable. It was a part of the history of the transaction, the concluding part. Besides, the pith of the proposition lies not in t’he discharge, concerning the effect of which the jury were instructed favorably to the defendant, but in the fact that the situation was such that resort was had to habeas corpus. It was a part of the conduct of the parties. It had a tendency to show an improbability that the plaintiff was free to leave the yacht when she should choose. The probative force of it was well stated by the presiding Justice in his charge, in stating the differing contentions of the parties. “It is argued on the part of the plaintiff,” he said, “that it is unreasonable and improbable to assert that she was not restrained of her liberty when you find her resorting to a writ of habeas corpus; that if she could 'have had at any time a boat to go on shore and be taken on shore, that she would not in all human probability have resorted to, or even acquiesced in, the resort of any of her friends to a writ of habeas corpus, for there was no necessity for it.” We think the argument is not devoid of merit. How much weight should be given to it was for the jury to say. It will be noticed that this evidence, as the case was submitted by the court to the jury, was applied to the question of restraint of liberty by some one, and not to the responsibility of the defendant for it. We think the rulings were right.

2. The plaintiff claimed and testified that on two or three occasions the defendant personally refused to furnish her with a boat so that she could leave the Kingdom, that when she wanted to go ashore, “they,” evidently referring to the defendant and her husband, “had talked against it,” that the defendant “had spoken plainly that it was out of fhe question,” that when she spoke to him about it he said he would leave it to her husband to do what he wanted to, that he would not fake the responsibility of separating families, but that when she asked her husband to take her ashore, he replied, 'We will see Mr. Sanford about it and see what he says.” The plaintiff contended that in this way the defendant and her husband in effect played into -each other’s hands, and shifted *83the responsibility from one to the other, while she was the victim of this play of battledore and shuttlecock. It was contended that by virtue of the peculiar religious character attributed to the defendant by those who were in the movement, of whom the plaintiff’s husband was one, being a minister of that faith, he possessed and exercised supreme control over the members, both on sea and on land, and that his wish was law both to their wills and to their consciences, and that the plaintiff’s husband, whatever part he took in the matter, was either merely the defendant’s instrument, or else was colleagued with him.

It therefore became pertinent for the plaintiff to show the nature and extent of the defendant’s authority and power. This, of course, was only one step, but it was a step. Another would be to show that the defendant exercised that authority and that it was effective in restraining the plaintiff of her liberty.

And the plaintiff was permitted to testify, subject to exception, to the following effect: — Several years ago the defendant said that God gave him a message, that Elijah was here, that he was the second Elijah, and had come to prepare the way for the coming of Christ, that he talked that to the people in the movement for years, and that they knew him as Elijah; that later he said God gave him messages and made him know that the Kingdom, of God was established again on earth, and that God made him know that he was to be king among the people, the twelve tribes of Israel scattered out over all the earth, that God scattered them, when they were in Palestine after he had brought them out of the land of Egypt, that they sinned and he scattered them, but he said that in the last days they should be restored and brought back to Palestine, and Palestine should be made a glorious land again as God intended it to be, and these people should be gathered up and brought back and restored to the true religion of Jesus Christ, and that God said in the Bible among the prophesies that when these days come and the people are restored He is going to give them a king; he said that a king shall reign and rule in righteousness; he said that God made him know that he was King David, and that he was to reign and rule in righteousness, and that all the earth was going to bow to him. And the witness testified further, that all the people in the *84movement at Shiloh, which seems to have been the original home of the movement, and the place where the plaintiff’s husband was minister, know him as King David, and call him so.

In connection with this exception it may be noticed that one of the defendant’s witnesses; a member of the movement, and apparently a frank and intelligent man, being asked on cross-examination to explain why the defendant is sometimes called King David, testified without objection: — “We believe that Mr. Sanford is the Dav-id that is spoken of as the character that is to appear in the last days to prepare God’s people for the coming of Christ.”

Under the circumstances of this case, we think that the evidence objected to was admissible. We think it is a fair inference that a person believed by his followers to possess the character thus attributed to the defendant would be very likely to obtain the power and influence over them, which it is claimed the defendant had. This is not a religious question, but a question of law. We are not concerned in this case with the beliefs of the defendant and those connected with him. We do not seek to impugn in the slightest degree the grounds of their beliefs. But, whether right or wrong, we think that it is clear that to the trusting and devout followers of such a leader, his influence, his will, his wish, might easily, • and probably would, become paramount over. their minds, and would control their actions. Besides, the question of the nature and extent of the defendant’s control was made relevant by the defendant’s contention that the captain and other officers of the yacht, and not the defendant, were in control of the small boats and that the control was practically independent of the defendant. It must be remembered that this discussion goes only to> the admissibility of the evidence, and not to its effect. If in fact the power was not used by the defendant to keep the plaintiff on board the yacht against her will, the possession of the power cannot' count against the defendant.

3. The plaintiff’s writ was brought in a plea of the case, but the defendant contends that the declaration in her writ was in its effect a declaration for trespass to the person. The defendant requested the court to instruct the jury that “to maintain her action the plaintiff must show some actual physical force exercised *85by the defendant or by someone acting as his agent and by his authority to restrain her of her liberty.”

We think the defendant’s assumption in his request that the action in effect is trespass .to the person is without warrant. In argument, stress is laid upon the use of the words “with force and arms.” These words appear only in the first and fourth counts. But the record shows that the court at the defendant’s request instructed the jury that the plaintiff could not recover under either of these counts. They are out of the case now. In the remaining counts it is alleged that the unlawful restraint was “by force and against the will of the plaintiff.” The court instructed the jury that the plaintiff to recover must show that the restraint was physi- ' cal, and not merely a moral influence, that it must have been actual physical restraint, in the sense that one intentionally locked into a room would be physically restrained, but not necessarily involving physical force upon the person; that it was not necessary that the defendant, or any person by his direction, should lay his hand upon the plaintiff, that if the plaintiff was restrained so that she could not' leave the yacht Kingdom by the intentional refusal to furnish transportation as agreed, she not having it in her power to escape otherwise, it would a physical restraint and unlawful imprisonment. We think the instructions were apt and sufficient. If one should, without right, turn the key in a door, and thereby prevent a person in the room from leaving, it would be the simplest form of unlawful imprisonment. The restraint is physical. The four walls and the locked door are physical impediments to escape. How is it different when one who is in control of a vessel at anchor, within practical rowing distance from the shore, who has agreed that a guest on board shall be free to leave, there being no means to leave except by rowboats, wrongfully refuses the guest the use of a boat? The boat is the key. By refusing the boat he turns the key. The guest is as effectually locked up as if there were walls along the sides of the vessel. The restraint is physical. The impassable sea is the physical barrier.

There are other exceptions, but the points involved are all covered by the foregoing discussion. The exceptions must all be overruled.

*86The Motion.

A careful study of the evidence leads us to conclude that the jury were warranted in finding that the defendant was guilty of unlawful imprisonment. This, to be sure, is not an action based upon the defendant’s failure to keep his agreement to permit the plaintiff to leave the yacht as soon as it should reach shore. But his duty under the circumstances is an important consideration. It cannot be believed that either party to the agreement understood that it was his duty merely to bring her to an American harbor. The agreement implied that she was to go ashore. There was no practical way for her to go ashore except in the yacht’s boats. The agreement .must be understood to mean that he would bring her to land, or to allow her to get to land, by the only available means. The evidence is that he refused her a boat. His refusal was wrongful. The case leaves not the slightest doubt that he had the power to control the boats, if he chose to exercise it. It was not enough for him to leave it -to the husband to say whether she might go ashore or not. She had a personal right to go on shore. If the defendant personally denied her the privilege, as the jury might find he did, it was a wrongful denial.

It is shown -that on several .occasions the defendant told the plaintiff she could have a boat when she wished, but it is also shown by testimony which the jury might believe that each time she made request for a boat to be used at the time, she was refused. The plaintiff did not ask the captain or other officers of the yacht for a boat. These officers testified that they had authority to let anyone have the use of a boat, and that, without consulting the defendant. We do not think the defendant can justly claim that she should have asked the officers under him, if he had himself denied her a boat. And in the one specific case shown in the evidence, when she did ask the captain for a boat to go on shore, he referred the discussion of the matter to the defendant. This was at Malta. She apparently believed that an appeal to- the officers would be useless. It was not an unreasonable belief.

The defendant did not become a witness, but it is claimed for him that after Tuesday, May 10, he assumed no responsibility whatever for the plaintiff, and left her in the care of her husband, *87specifically saying that he would leave it to her husband to say whether she could leave the yacht. From that date, he stayed on the Coronet, only coming aboard the Kingdom once, though on that occasion she says he refused her the use of a boat. From that date she was in the company of her husband, though they were not living in marital relations. She went ashore with him. She visited neighboring islands with him. She was trying to persuade him to leave the movement and make a home for her and their children. He was trying to persuade her to become again a member of the movement. When on shore with him she made no effort to escape. She says she believed it would be useless, and thus went back to the yacht with him. She says that when she did ask her husband to put her ashore to leave, he replied, “We will see Mr. Sandford about it and see what he says.” She further says that the defendant had told her that “he” (her husband) “couldn’t do it” (put her on shore).

Besides the evidence of express personal refusal on the part of the defendant, we think that a jury might well find upon the evidence that the defendant was strongly desirous that the plaintiff should not leave the yacht, probably for the reason that he hoped her husband’s influence might lead her back into the movement, that the husband was strongly desirous of the same end, that if she left the yacht she would be beyond the influence of her husband; that the subject was a matter of conversation between the defendant and the husband; that in view of the relation which the defendant bore to the movement and to the husband, in view of the mystical character attributed to him, in view of the manifest power possessed by him over the minds of the members, growing out of a belief which we have already stated, and which the husband shared in, the husband, if not acting by express mutual understanding with the defendant, was the minister of his known will, with the result that the plaintiff was prevented from leaving the yacht; that the defendant was the superior, the controlling factor, by an influence intentionally used, in keeping her there; that he possessed the key that would unlock the situation; and that in violation of his duty he refused to use it, and thus restrained her of her liberty. If all this was true, the defendant is liable to the plaintiff. The verdict should not be set aside on that ground.

*88But the damages awarded seem to us manifestly excessive. The plaintiff, if imprisoned, was by no means in close confinement. She was afforded all the liberties of the yacht. She was taken on shore by her husband to do shopping and transact business at a bank. She visited neighboring islands with fier husband and children; on one of which they enjoyed a family picnic. The case lacks the elements of humiliation and disgrace that frequently attend false imprisonment. She was respectfully treated as a guest in every way, except that she was restrained from quitting the yacht for good and all.

The certificate will be,

Exceptions overruled.

If the plaintiff remits all of the verdict in excess of $joo, within 30 days after the certificate is received by the clerk, motion overruled; otherwise, motion sustained.

*456SAVOY, Judge.

Deryl D. Rougeau instituted this tort suit against his ex-employer, Firestone Tire and Rubber Company, seeking damages for defamation and false imprisonment. These actions are alleged to have occurred during the investigations by agents of defendant concerning missing property at defendant’s Lake Charles plant. The trial judge denied recovery to plaintiff, and we affirm the judgment of the trial judge.

Plaintiff was employed as a guard-fireman at defendant’s plant in Lake Charles. Two lawnmowers belonging to defendant were allegedly stolen during plaintiff’s working shift. Local management enlisted the aid of E. E. Drummond, Corporate Security Manager of Firestone Tire and Rubber Company, to investigate the thefts. Drummond conducted his investigation by interviewing a total of 19 persons at the plant. At the end of each interview he would have the person interviewed sign a statement containing information obtained at the interview. A substantial number of these interviews revealed evidence to Drummond to implicate plaintiff as a direct or indirect participant in the thefts. Plaintiff, after his interview with Drum-mond, signed a statement denying taking the missing property. He also signed statements giving permission to have his home searched and to take a polygraph test. This permission was withdrawn by plaintiff, on advice of his attorney, before the search or polygraph test were conducted. The information gathered by Drum-mond and plaintiff’s conduct led to his discharge from Firestone “for actions not in accord with the company’s interest and his refusal to discuss with management personnel items related to his work.”

Plaintiff exhausted two administrative forums as the result of his dismissal from Firestone. First, he filed a grievance alleging he was fired without just and good cause, a violation of the agreement between plaintiff’s union and defendant. Formal arbitration of the grievance resulted in its denial. Second, plaintiff filed a charge with the National Labor Relations Board alleging defendant committed an unfair labor practice. The Regional Office of the National Labor Relations Board in New Orleans investigated and concluded that they did not have sufficient evidence for the Board to issue a complaint. This administrative decision was appealed by plaintiff to the General Council of the National Labor Relations Board in Washington, D. C. The General Council advised plaintiff that the appeal was denied. Failing to win a favorable administrative decision, plaintiff entered a judicial forum filing the instant suit, alleging as his causes of action defamation and false imprisonment.

We first review plaintiff’s cause of action for defamation.

In his petition, plaintiff alleged defendant’s officers, particularly Drummond, in the conduction of their investigation, conspired to discredit plaintiff by falsely representing him to union officials, co-employees and others as a liar, a thief and having participated in criminal conduct; that Drummond subjected plaintiff to coercive interrogation; that statements signed by plaintiff, consenting to a search of his home and the taking of a polygraph test were published by defendant and distributed to third persons; that during the interviews with co-employees of plaintiff, he was cast in the light of being a liar, a thief and a derelict; that defendant’s agents orally described plaintiff as a liar, a thief, and a derelict to union officials, co-employees and others.

A trial was conducted, after which the trial judge arrived at the following facts: Drummond conducted the investigations in the office of Ben M. Trahan. Drummond interrogated all 19 plant guards individually, and at each interview only Drummond and the guard interviewed were present. There was no evidence to indicate that these interviews either could have been overheard or were overheard by persons outside the office. Two guards, Bush and *457Golden, gave testimony that Drummond told them that “all of you are thieves and liars” with express reference to plaintiff. Drummond denied this testimony. All other witnesses said the investigation was orderly and courteous, and that no such accusations were made by Drummond about anyone. The trial judge accepted the testimony of Drummond over that of Bush and Golden because of their attitudes as witnesses, and a difference in their testimony at trial and statements signed earlier. There was no proof that any notoriety or publications were made by defendant concerning any of their investigations or information which was received as a result of the investigations.

We agree with the findings of fact of the trial judge. It is an established rule that findings of fact by the trial judge, particularly those involving the credibility of witnesses, are entitled to great weight on appeal, and that determination of fact made by the trial judge will not be disturbed unless found to be clearly erroneous. Brown v. Allen, 253 So.2d 611 (La.App. 3 Cir. 1971); Lewis v. Travelers Insurance Company, 247 So.2d 635 (La. App. 3 Cir. 1971), writ refused, 259 La. 70, 249 So.2d 207; Sas Jaworsky v. Padfield, 211 So.2d 122 (La.App. 3 Cir. 1968).

Defendant reasonably conducted an investigation into the suspected wrongdoings of its employees, which it had a right to do. Toomer v. Breaux, 146 So. 2d 723 (La.App. 3 Cir. 1962); Lancaster v. Hibernia Bank and Trust Co., 163 La. 821, 112 So. 798 (1927); Gilliland v. Feibleman’s, Inc., 161 La. 24, 108 So. 112 (1926); Raggio v. Morgan’s Louisiana and Texas R and S.S. Company, 148 La. 209, 86 So. 747 (1920). Plaintiff attempted to use the investigations and the information obtained from the investigations as the basis for his defamation suit. The elements of proof necessary to make defamatory words actionable are (1) publication, that is communication to some person other than the defamed; (2) falsity; (3) malice, actual or implied; and (4) resulting injury. Sas Jaworsky, supra. See Comment 28 La.Law Rev. 82 (1967) and cases collected therein. Plaintiff has failed to show that defendant has published any defamatory statement or words.1 Having failed to prove any element necessary to show defamation, we affirm the trial judge’s decision denying relief to plaintiff on the basis of defamation.

Plaintiff also sought damages for false imprisonment.2 The facts revealed that Drummond and two employees of defendant and plaintiff went to his home to search for the missing property. Plaintiff, on advice of his attorney, refused to allow the search. Drummond, the employees of defendant, and plaintiff returned to the plant. Plaintiff was asked to wait in the guardhouse. Two guards were instructed to keep plaintiff in the guardhouse. However, both guards stated they did not consider plaintiff to be a prisoner. Plaintiff was allowed to leave when he fell ill. The total amount of time which plaintiff spent in the guardhouse did not exceed thirty minutes.

We agree with the trial judge that plaintiff was not falsely imprisoned. At no time was he totally restrained. Crossett v. Campbell, 122 La. 659, 48 So. 141 (1908). Additionally, plaintiff never revealed to anyone that he did not want to stay in the guardhouse, thus showing his implied consent to stay. Coates v. Schwegmann Bros. *458Giant Super Markets, Inc., 152 So.2d 865 (La.App. 4 Cir. 1963); Banks v. Food Town, 98 So.2d 719 (La.App. 1 Cir. 1957).

Finding no culpability on the part of defendant for defaming or falsely imprisoning plaintiff, we find that defendant did not intentionally invade or interfere with property, property rights, or personal rights of plaintiff.

For the reasons assigned, the judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

Affirmed.

*320Spiegel, J.

This is an action of tort for false imprisonment.1 At the close of the evidence the defendants filed a motion for directed verdicts which was denied. The jury returned verdicts for the plaintiff in the sum of $12,500. The case is here on the defendants’ exceptions to the denial of their motion and to the refusal of the trial judge to give certain requested instructions to the jury.

We state the pertinent evidence most favorable- to the plaintiff. On March 5, 1965, the plaintiff went to Kennedy’s, Inc. (Kennedy’s), a store in Boston. He was seventy years of age and about five feet four inches in height. He was wearing a woolen shirt, which was “open at the neck,” a topcoat and a hat. “QAJround his neck” he wore an ascot which he had “purchased . . . previously at Filenes.” He proceeded to the second floor of Kennedy’s to purchase a sport coat. He removed his hat, topcoat and ascot, putting the ascot in his pocket. After, purchasing a sport coat and leaving it for alterations, he put on his hat and coat and walked downstairs. Just prior to exiting through the outside door of the store, he stopped, took the ascot out of his pocket, put it around his neck, and knotted it. The knot was visible “above the lapels of his shirt.” The only stop that the plaintiff made on the first floor was immediately in front of the exit in order to put on his ascot.

Just as the plaintiff stepped out of the door, the defendant Goss, an employee, “loomed up” in front of him with Ms hand up and said: “Stop. Where did you get that scarf?” The plaintiff responded, “[WJhy?” Goss firmly grasped the plamtiff’s arm and said: “[Y]ou better go back and see the manager.” Another employee was standing next to him. Eight or ten other people were standing around and were starmg at the plaintiff. The plaintiff then said, “Yes, I’ll go back in the store” and proceeded to. do so. As he and Goss went upstairs to the second floor, *321the plaintiff paused twice because of chest and back pains. After reaching the second floor, the salesman from whom he had purchased the coat recognized him and asked what the trouble was. The plaintiff then asked: “[W]hy ‘these two gentlemen stop me?’ ” The salesman confirmed that the plaintiff had purchased a sport coat and that the ascot belonged to him.

The salesman became alarmed by the plaintiff’s appearance and the store nurse was called. She brought the plaintiff into the nurse’s room and gave him a soda mint tablet. As a direct result of the emotional upset caused by the incident, the plaintiff was hospitalized and treated for a “myocardial infarct.”

Initially, the defendants contend that as a matter of law the plaintiff was not falsely imprisoned. They argue that no unlawful restraint was imposed by either force or threat upon the plaintiff’s freedom of movement. Wax v. McGrath, 255 Mass. 340, 342. However, “|T]he law is well settled that ‘[V]ny general restraint is sufficient to constitute an imprisonment . . .’ and ‘[a]ny demonstration of physical power which, to all appearances, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised.’ ‘If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment’ within the legal meaning of such term.” Jacques v. Childs Dining Hall Co. 244 Mass. 438, 438-439.

We think it is clear that there was sufficient evidence of unlawful restraint to submit this question to the jury. Just as the plaintiff had stepped out of the door of the store, the defendant Goss stopped him, firmly grasped his arm and told him that he had “better go back and see the manager.” There was another employee at his side. The plaintiff was an elderly man and there were other people standing around staring at him. Considering the plaintiff’s age and his heart condition, it is hardly to be expected that with one employee in front of him firmly grasping *322his arm and another at his side the plaintiff could do other than comply with Goss’s “request” that he go back and see the manager. The physical restraint imposed upon the plaintiff when Goss grasped the plaintiff’s arm readily distinguishes this case from Sweeney v. F. W. Woolworth Co. 247 Mass. 277, relied upon by the defendants.

In addition, as this court observed in the Jacques case, supra, at p. 441, the “honesty and veracity [of the plaintiff] had been openly . . . challenged. If she had gone out before . . . [exonerating herself], her departure well might have been interpreted by the lookers on as an admission of guilt, or of circumstances from which guilt might be inferred. The situation was in the control of the defendant. The restraint or duress imposed by the mode of investigation . . . the jury could say was for the accomplishment of the defendant’s purpose, even if no threats of public exposure or of arrest were made, and no physical restraint of . . . [the plaintiff] was attempted.” For cases in other jurisdictions, where the evidence tended to support the tort of false imprisonment, see Clark v. Kroger Co. 382 F. 2d 562, 563 (7th Cir.); Patrick v. Esso Standard Oil Co. 156 F. Supp. 336, 340 (D. N. J.); Daniel v. Phillips Petroleum Co. 229 Mo. App. 150, 155; Lukas v. J. C. Penney Co. 233 Ore. 345, 354.

The defendants next contend that the detention of the plaintiff was sanctioned by G. L. c. 231, § 94B, inserted by St. 1958, c. 337. This statute provides as follows: “In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person so detained was committing or attempting to commit larceny of goods for sale on such premises, it shall be a defence to such action. If such goods had not been purchased and *323were concealed on or amongst the belongings of a person so detained it shall be presumed that there were reasonable grounds for such belief.”

The defendants argue in accordance with the conditions imposed in the statute that the plaintiff was detained in a reasonable manner for a reasonable length of time and that Goss had reasonable grounds for believing that the plaintiff was attempting to commit larceny of goods held for sale.

It is conceded that the detention was for a reasonable length of time. See Proulx v. Pinkerton’s Natl. Detective Agency, Inc. 343 Mass. 390, 392-393. We need not decide whether the detention was effected in a reasonable manner for we are of opinion that there were no reasonable grounds for believing that the plaintiff was committing larceny and, therefore, he should not have been detained at all. However, we observe that Goss’s failure to identify himself as an employee of Kennedy’s and to disclose the reasons for his inquiry and actions, coupled with the physical restraint in a public place imposed upon the plaintiff, an elderly man, who had exhibited no aggressive intention to depart, could be said to constitute an unreasonable method by which to effect detention. See Lukas v. J. C. Penney Co. 233 Ore. 345, 352, 360.

The pivotal question before us as in most cases of this character is whether the evidence shows that there were reasonable grounds for the detention. At common law in an action for false imprisonment, the defence of probable cause, as measured by the prudent and cautious man standard, was available to a merchant. Standish v. Narragansett S.S. Co. 111 Mass. 512, 517. Jacques v. Childs Dining Hall Co. 244 Mass. 438, 439. Muniz v. Mehlman, 327 Mass. 353, 358.2 In enacting G. L. c. 231, § 94B, the Legislature inserted the words, “reasonable grounds.” Historically, the words “reasonable grounds” and “probable *324cause” have been given the same meaning by the courts. In the case of United States v. Walker, 246 F. 2d 519, 526 (7th Cir.) it was said: “ ‘Probable cause’ and ‘reasonable grounds’ are concepts having virtually the same meaning.” The following cases have expressly stated that the words may be used interchangeably and without distinction. Draper v. United States, 358 U. S. 307, 310. United States v. Vasquez, 183 F. Supp. 190, 193 (E.D.N.Y.). Smallwood v. Commonwealth, 305 Ky. 520, 524. McKeon v. National Cas. Co. 216 Mo. App. 507, 524. Adams v. State, 137 Tex. Cr. 43, 46. Stelloh v. Liban, 21 Wis. 2d 119, 125. In the case of Lukas v. J. C. Penney Co., supra, at p. 361, the Oregon Supreme Court construed the meaning of the words “reasonable grounds” in its “shoplifting statute” as having the same meaning as they have in a statute authorizing arrest without a warrant and applied the probable cause standard to the facts before it.

The defendants assert that the judge improperly instructed the jury in stating that “grounds are reasonable when there is a basis which would appear to the reasonably prudent, cautious, intelligent person.” In their brief, they argue that the “prudent and cautious man rule” is an objective standard and requires a more rigorous and restrictive standard of conduct than is contemplated by G. L. c. 231, § 94B. The defendants’ requests for instructions, in effect, state that the proper test is a subjective one, viz., whether the defendant Goss had an honest and strong suspicion that the plaintiff was committing or attempting to commit larceny.3

*325We do not agree. As we have attempted to show, the words “reasonable grounds” and “probable cause” have traditionally been accorded the same meaning. In the case of Terry v. Ohio, 392 U. S. 1, involving the question whether a police officer must have probable cause within the Fourth Amendment to “stop-and-frisk” a suspected individual, the Supreme Court of the United States held that the “probable cause” requirement of the Fourth Amendment applies to a “stop-and-frisk” and that a “stop- and-frisk” must “be judged against an objective standard: would the facts available to the officer at the moment . . . ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.” Pp. 21-22.

If we adopt the subjective test as suggested by the defendants, the individual’s right to liberty and freedom of movement would become subject to the “honest . . . suspicion” of a shopkeeper based on his own “inarticulate hunches” without regard to any discernible facts. In effect, the result would be to afford the merchant even greater authority than that given to a police officer. In view of the well established meaning of the words “reasonable grounds” we believe that the Legislature intended to give these words their traditional meaning. This seems to us a valid conclusion since the Legislature has permitted an individual to be detained for a “reasonable length of time.” This would be at least analogous to a “stop” within the meaning of the Terry case.4

*326We also note that an objective standard is the criterion for determining probable cause or reasonable grounds in malicious prosecution and false arrest cases. Bacon v. Towne, 4 Cush. 217, 238-239. Wax v. McGrath, 255 Mass. 340, 343. We see no valid reason to depart from this precedent in regard to cases involving false imprisonment.

Applying the standard of reasonable grounds as measured by the reasonably prudent man test 5 to the evidence in the instant case, we are of opinion that the evidence warranted the conclusion that Goss was not reasonably justified in believing that the plaintiff was engaged in shoplifting. There was no error in denying the motion for directed verdicts and in the refusal to give the requested instructions.

Exceptions overruled.

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.

Knowlton, J.

This case presents two questions: first, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on shipboard, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon’s conduct must be considered in connection with the circumstances. If the plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 577, 578. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550, 552. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of immigrants, to see that they are protected from small-pox by vaccination, and that only those *274persons who hold a certificate from the medical officer of the steamship, stating that they are so protected, are permitted to land without detention in quarantine or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all immigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship’s medical officer to vaccinate such as needed vaccination, were posted about the ship, in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff’s testimony, which in this particular is undisputed, it appears that about two hundred women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about fifteen feet from the surgeon, and saw them form in a line and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark”; that she did not hear him say anything to any of them; that upon being passed by they each received a card and went on deck; that when her turn came she showed him her arm, and he looked at it and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before and it left no mark; “that he then said nothing, that he should vaccinate her again”; that she held up her arm to be vaccinated; that no one touched her; that she did not tell him that she did not want to be vaccinated; and that she took the ticket which he gave her certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that *275purpose. Viewing his conduct in the light of the circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.

The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination, as alleged in the second count, was negligently performed. “There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count.

Whether there was any evidence of negligence of the surgeon, we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is, that he is a servant engaged in the defendant’s business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the act of Congress of August 2, 1882, § 5, it is provided that “every steamship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly qualified and competent surgeon or medical practitioner, who shall be rated as such in the ship’s articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given, in any case of sickness or disease, to any of the passengers, or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.”

Under this statute it is the duty of ship-owners to provide a competent surgeon, whom the passengers may employ if they *276choose, in the business of healing their wounds and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship’s surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves, if they are sick, or may go without treatment if they prefer; and if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him. This is the whole requirement of the statute of the United States applicable to such cases, and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steamship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person, it would be unreasonable to hold them responsible for all the particulars of his treatment, when he is engaged in the business of other persons in regard to which they are powerless to interfere.

The reasons on which it is held, in the courts of the United States and of Massachusetts, that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53, 67. Yates v. Brown, 8 Pick. 23. The pilot is en*277gaged in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such cases the owners are not liable. Carruthers v. Sydebotham, 4 M. & S. 98. The Protector, 1 W. Robinson, 45. The Maria, 1 W. Robinson, 95.

The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the Court of Appeals of New York, in Laubheim v. De Koninglyke Stoomboot Co. 107 N. Y. 228. See also Secord v. St. Paul, Minneapolis, & Manitoba Railway, 18 Fed. Rep. 221; McDonald v. Massachusetts General Hospital, 120 Mass. 432. We are of opinion that on both parts of the case the rulings at the trial were correct.

The evidence which was excepted to, consisting of the printed quarantine regulations above referred to, and of testimony that only the steerage passengers holding a surgeon’s certificate were allowed to land, all others being vaccinated by the port physician or detained at quarantine, was rightly admitted.

Exceptions overruled.

Frank T. Gallagher, Justice.

Appeal from an order of the district court denying plaintiffs’ alternative motion to vacate the dismissal of their action against Frederic E. B. Foley, herein referred to as defendant, or for a new trial.

This was an action for damages for alleged assault or unauthorized operation by the defendant on his patient, Helmer Bang, referred to herein as plaintiff. The latter contends that the question as to whether he expressly or impliedly consented to the operating procedures involved was one of fact for the jury. At the close of plaintiffs’ case, the defendant moved for a directed verdict upon the grounds that plaintiffs had faded to prove any actionable negligence or any cause of action against him. This motion was treated by the trial court as a motion for dismissal on the merits, which motion was granted. A similar motion was granted with respect to the other defendant, Charles T. Miller Hospital, but that action is not questioned on appeal.

The sole issue raised by the plaintiff on appeal is: Should the question of whether or not there was an assault or unauthorized operation have been submitted to the jury as a fact issue?

By way of a brief review, plaintiff began having urinary trouble in 1951 to 1952. He consulted a doctor in his home town of Austin, Minnesota, who sent him to the hospital for a cystoscopic examination which was made by two local doctors in Austin. Plaintiff testified that they informed him of an enlargement of the prostate gland and bladder soreness and recommended either Rochester or defendant in St. Paul as places he could go to have some tissue removed from the gland to overcome the trouble.

In any event, plaintiff consulted with the defendant on April 6, 1953, at the latter’s office in St. Paul. The defendant testified that at that time the patient complained of diminished size and force of the urinary stream and increased frequency of urination. He said that the plaintiff described various urinary symptoms and that a rectal examination of the prostate was performed. Not being certain at that *429time of the exact nature of the plaintiff’s ailment, the defendant informed plaintiff that he wished to make a cystoscopic examination the following day and suggested that plaintiff be admitted to the Miller Hospital in St. Paul for further investigation, which was done. He said that he informed his patient “that the purpose of his going into the hospital was for further investigation with a view to making a prostate operation if the further examination showed that that was indicated.”

The important question for determination of the matter presently before us is whether the evidence presented a fact question for the jury as to whether plaintiff consented to the severance of his spermatic cords when he submitted to the operation. Defendant testified on cross-examination under the rules that he did not tell plaintiff at the time of the office visit, April 6, that any examination defendant had made or was going to make had anything to do with the spermatic cord, nor did he recall explaining to his patient what a prostate-gland operation involved. He also said that plaintiff’s life was in no immediate danger because of his condition on that day.

He was further questioned:

“Q. Did you tell him in your office that if the later examination in the hospital the following day indicated prostate trouble it would be necessary for you as part of your operation to cut his spermatic cords?

“A. I am not certain that particular detail of the operation was explained to him.

“Q. Dr. Foley, is it not true that the only thing mentioned to Mr. Bang in your office was that a further examination was needed in order to confirm your diagnosis so that you would know what you were going to do next?

“A. That is correct.”

On the following day the operation was performed. When defendant was asked as to the procedure used, he replied:

“A. * * * the cysto-urethroscopic examination was made; following that I went over to the head of the table and talked to Mr. Bang, told him what the findings were, and that in my opinion the transurethral prostatic resection should be done and I had his consent that we proceed with that operation.

*430“Q. Did you at that time as I understand it now ask him for his consent?

“A. Yes.

Ifc ‡ # #

“Q. * * * did you at the time you talked to Mr. Bang on the table tell him anything about what you were going to do about his spermatic cords?

“A. I do not recall definitely whether that particular detail of the operation was discussed with Mr. Bang or not.”

After identifying his signature to a carbon copy of some questions answered under oath by means of written interrogatories, the defendant was asked:

“Q. Were you asked the following question and did you give the following answer at that time? Did you inform Helmer Bang that in his specific case of a prostate gland resection that you intended to sever the spermatic cords of him as a part of the operation or that it was necessary to do so in his specific case? And did you so answer as follows, I did not inform Helmer Bang that as a part of the prostate gland resection it would be necessary to sever the spermatic cords of his.

‡ ‡ ‡

“Q. Did you also answer, severance of the spermatic cords — bilateral was section [vas section] and ligation — is a routine part of this procedure in all cases of patients the age of Mr. Bang?

“A. Yes.

“Q. Did you give that whole answer?

* # % # #

“A. Yes.

* # * $ *

“Q. Did you at the same time, Dr. Foley, were you asked the following question and did you answer as follows, this in interrogatory 6. Did you inform Helmer Bang that as a part of a prostate gland resection it would be necessary to sever the spermatic cords of his? And did you answer as follows: I do not recall that I explained to him this particular technical detail of the operation any more than its other *431details. But definitely I did not ask his permission to omit bilateral vas section and ligation (severance of spermatic cords)?

“A. Well, that is written down there as my answer.

í* •!» ¥

“Q. If it is here as part of your answer would you say you did, Doctor?

“A. I would think so.

sfc ‡ # sfc Hí

“Q. Did you ask his permission, Dr. Foley, to go ahead and sever the cords as part of the operation for any other reason?

“A. I have already said I am uncertain about that.”

While it will serve no useful purpose to go into detail with reference to all of the testimony of plaintiff and defendant, the former described his consent to the procedure as follows:

“Q. Did you on that occasion, which was the 6th of April, 1953, in Dr. Foley’s office, tell Dr. Foley that he could proceed and do anything he wished as far as operating on you is concerned?

“A. Well, he said he would look up in there, if there was any correction needed on the bladder is what I understood he would do and I said that was o.k. on the bladder.

“Q. Did he mention the bladder?

“A. Well, he didn’t, well, that is what I told him my trouble was.”

The patient recalled the start of the operation and, when questioned on direct examination, stated:

“Q. Did he at any time before the operation began tell you that he was going to cut your spermatic cords?

“A. No.

“Q. Did he at any time before the operation began tell you that it was necessary to cut your cords?

“A. No.”

When questioned as to whether he had any conversation with the defendant at the operating table or during the entire period when he was in the operating room, plaintiff replied that with the exception *432of a morning greeting “and stuff like that” nothing was said to him with reference to the operation.

When being questioned on cross-examination with reference to consent, the plaintiff was asked:

“Q. And you certainly did consent, didn’t you, Mr. Bang, to Dr. Foley doing anything to correct your trouble which in his medical knowledge he felt should be corrected?

“A. Not anything he wanted to, no.

“Q. Did you put any limitation on his job as a surgeon?

“A. No.

“Q. When he said, if I find anything that needs correction I will do it at the same time and you said that was all right, that was all of the conversation there was, wasn’t it?

“A. That was all of the conversation there was.”

It is plaintiff’s claim that he thought he was discussing his bladder because he understood from his Austin physicians something about burning out the ulcers if there were any ulcers in there. He admitted, however, that defendant said nothing to him about ulcers. Plaintiff also admitted that he did not expect to tell the doctor what to do; that he had faith in him; and that he did not expect to tell him how to perform the operation. He said that he expected the doctor would operate to do what was necessary to right and cure his condition. He testified that he did not ask the doctor what he intended to do and left it up to him to do the right thing.

It is our opinion that under the record here the question as to whether plaintiff consented to the severance of his spermatic cords was a fact question for the jury and that it was error for the trial court to dismiss the action.

In view of our decision that the case must be submitted to the juiy, we deem it unnecessary to go into lengthy discussion of the law involved with reference to the question of consent. A leading case in this jurisdiction followed by other jurisdictions in this country1 is Mohr v. Williams, 95 Minn. 261, 104 N. W. 12. In that case plaintiff consulted the defendant, a physician and surgeon of standing and character, as *433is the situation here, with reference to a difficulty with her right ear. The doctor examined that ear and advised an operation, to which plaintiff consented. After the patient was placed under the influence of anesthetic and was unconscious therefrom, the defendant doctor examined her left ear and found it in a more serious condition than the right one and in greater need of an operation. He called the attention of plaintiff’s family physician, who attended the operation at plaintiff’s request, to the conditions he had discovered and finally concluded that the operation should be performed on the left ear instead of the right one. The family physician made no objection to this conclusion. Plaintiff had not previously experienced any difficulty with her left ear and was not informed prior to the time she was placed under the influence of anesthetic that any difficulty existed with reference to it, and she did not consent to an operation thereon. Subsequently, on the claim that the operation seriously impaired her sense of hearing and was wrongful and unlawful, she brought an action to recover for assault and battery. The trial resulted in a verdict for the plaintiff. Thereafter defendant moved for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion for judgment but granted a new trial on the ground that the damage was excessive. Defendant appealed from the order denying the motion for judgment and plaintiff appealed from the order granting a new trial. It was held under the circumstances there that the defendant doctor had no authority to perform that operation without plaintiff’s consent, expressed or implied; that her consent was not expressly given; and that whether it should be implied from the circumstances of the case was a question for the jury to determine. In reviewing the record in that case, this court concluded that the consent of the patient to the operation on her left ear was necessary and stated (95 Minn. 268, 104 N. W. 14) “It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him.” The court then went on to say, however, that reasonable latitude must be allowed a physician in a particular case so as to not unreasonably interfere with the exercise of his discretion or prohibit him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. The court pointed out there *434that, if a person should be injured to the extent of rendering him unconscious and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb and consent on the part of the injured person would be implied.

Another situation could be that if in the course of an operation to which the patient consented the physician or surgeon discovered conditions not anticipated before the operation was commenced, and which if not removed would endanger the life or health of the patient, he would be justified in extending the operation to remove and overcome those conditions even though no express consent was obtained or given by the patient. The general rule seems to be well established that before a physician or surgeon may perform an operation on a patient he must obtain the consent either of the patient, if competent to give it, or of someone legally authorized to give it for him unless an immediate operation is necessary to save the patient’s life or health, although under exceptional circumstances the consent may be regarded as having been impliedly given. Annotation, 76 A. L. R. 562, and cases cited, including Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L. R. A. (N. S.) 439. Also see, Annotation, 56 A. L. R. (2d) 695.

While we have no desire to hamper the medical profession in the outstanding progress it has made and continues to make in connection with the study and solution of health and disease problems, it is our opinion that a reasonable rule is that, where a physician or surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation. By that we mean that, in a situation such as the case before us where no immediate emergency, exists, a patient should be informed before the operation that if his spermatic cords were severed it would result in his sterilization, but on the other hand if this were not done there would be a possibility of an infection which could result in serious consequences. Under such conditions the patient would at least have the opportunity of deciding whether he wanted to *435take the chance of a possible infection if the operation was performed in one manner or to become sterile if performed in another.

Reversed and a new trial granted.

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.

EMAS, J.

Francisco and Sonia Pages (“Dr. and Mrs. Pages”) appeal two lower court orders: (1) an order denying their exceptions to, and adopting, the general magistrate’s Report and Recommendation; and (2) a final order dismissing their amended complaint with prejudice and entering final judgment in favor of Julio Rafael Seliman-Tapia (“Tapia”). For the reasons that follow, we affirm.

On December 27, 2009, Dr. and Mrs. Pages were in the parking lot of the Dolphin Mall when they were confronted by Tapia, who accused Dr. Pages of parking too close to his car, causing it to become inoperable.1 According to witnesses who testified at an evidentiary hearing, Dr. Pages became very agitated, and was acting in an aggressive and confrontational manner toward Tapia, who had his hands in his pockets and was backing away from Dr. Pages. Dr. Pages continued to be confrontational and was bumping into Ta-*538pia with his chest. Mrs. Pages got between her husband and Tapia. At some point, Dr. Pages turned toward Tapia’s wife, Ms. Singer, who was telling Dr. Pages to calm down. Dr. Pages then rushed toward Ms. Singer in an aggressive manner. At this point Tapia became worried about his wife, who was disabled, and Tapia rushed toward Dr. Pages and pushed him down, causing Dr. Pages to hit his head. Mrs. Pages testified that Tapia picked Dr. Pages up and threw him in the air, causing him to land on his head. She also testified that in doing so, Tapia made contact with Mrs. Pages, and that her back hurt for a few days afterward. Mrs. Pages was the only witness who testified that Tapia came into contact with her when Tapia pushed Dr. Pages down.

Tapia was later charged by information with felony battery on Dr. Pages and misdemeanor battery on Mrs. Pages. Pursuant to a negotiated plea, Tapia pled guilty to the misdemeanor battery, was adjudicated guilty, and the State entered a nolle prosequi to the felony battery charge.

The Pages filed a civil lawsuit against Tapia, and in the complaint asserted two counts — assault and battery against Dr. Pages and loss of consortium on Mrs. Pages’ behalf. The complaint was later amended to include an additional count of assault and battery upon Mrs. Pages.

Tapia asserted entitlement to immunity based on Florida’s Stand Your Ground laws.2 The issue of immunity was referred to a general magistrate, who conducted an evidentiary hearing on June 14, 2012.3 The general magistrate found that Tapia had established his entitlement to immunity under section 776.032, Florida Statutes (2009), applying a preponderance of the evidence standard. See State v. Yaqubie, 51 So.3d 474 (Fla. 3d DCA 2010). Specifically, the magistrate found that Mrs. Pages was not credible, and that the testimony of all the other witnesses established that Dr. Pages was the aggressor, and that Tapia acted only when Dr. Pages began moving aggressively toward Tapia’s wife.4 Dr. and Mrs. Pages filed exceptions to the general magistrate’s Report and Recommendation and, after a hearing, the trial court denied the exceptions and adopted the general magistrate’s Report and Recommendation. The court later entered final judgment in favor of Tapia, and dismissed the amended complaint with prejudice.

On appeal, we apply a mixed standard of review: “The trial court’s legal conclusion[s are] reviewed de novo, but its findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence.” Darling v. State, 81 So.3d 574, 577 (Fla. 3d DCA 2012).

Chapter 776, Florida Statutes, encompasses what is referred to as Florida’s “Stand Your Ground” law. Under section 776.032(1):

A person who uses force as permitted in s.776.012, s.776.013, or s.776.031 is justified in using such force and is immune from criminal prosecution and civil ac*539tion for the use of such force, unless the person against whom force was used is a law enforcement officer....

Section 776.012 (“Use of force in defense of person”) provides in pertinent part:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

Section 776.013, titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm,” provides, inter alia:

A person who is not engaged in an unlawful activity and who is attacked in any other place5 where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another....

§ 776.018(3).

Dr. and Mrs. Pages assert that Tapia was not entitled to immunity because, under section 776.013(3), he was “engaged in unlawful activity” when he pushed Dr. Pages. As evidence that Tapia was “engaged in unlawful activity,” Dr. and Mrs. Pages point to Tapia’s plea of guilty to the misdemeanor battery charge on Mrs. Pages. In other words, Dr. and Mrs. Pages argue, Tapia’s guilty plea and adjudication of guilt for a battery upon Mrs. Pages established, as a matter of law, that Tapia was “engaged in unlawful activity” when he pushed Dr. Pages, barring Tapia from seeking immunity under section 776.032.

Even if we were to find that the guilty plea to misdemeanor battery upon Mrs. Pages established as a matter of law that Tapia was “engaged in criminal activity” under section 776.013, it is beside the point: Tapia was entitled to, and did, assert immunity not only under section 776.013, but under section 776.012 as well. Under section 776.012, Tapia would be justified in using non-deadly force against Dr. Pages if he reasonably believed such force was necessary to defend himself or Ms. Singer (Tapia’s disabled wife) against Dr. Pages’ imminent use of unlawful force.

It is true that under section 776.013(3), a person may “meet force with force, including deadly force” (emphasis supplied), which on its face appears to contemplate the use of both deadly and non-deadly force. We also acknowledge that the person seeking immunity under section 776.013(3) must establish that he was “not engaged in unlawful activity.” However, this “not engaged in unlawful activity” language is not present in the applicable portion of section 776.012, which unambiguously provides for the justified use of non-deadly force. Section 776.032, by its express language, provides immunity for a person “who uses force as permitted in sections 776.012, 776.013 or 776.031.” This language evidences a clear legislative intent to provide alternative bases for asserting immunity under the Stand Your Ground Law.6

Therefore, even if Tapia was determined to have been “engaged in unlawful activi*540ty” (the misdemeanor battery upon Mrs. Pages) at the time of his use of force upon Dr. Pages, it is of no moment because the force used by Tapia upon Dr. Pages was non-deadly force and, under the relevant portion of section 776.012, Tapia need not establish that he was not engaged in unlawful activity.

Following an evidentiary hearing, the magistrate issued a detailed fourteen-page report and recommendation with factual findings, credibility assessments, and a conclusion that Tapia established by a preponderance of that evidence that he “had a reasonable fear for the safety of his wife, Ms. Singer, given Dr. Pages’ immediate and continuing aggressive behavior and, based on this reasonable fear, [Tapia] rushed over and pushed Dr. Pages hard to keep him from coming closer to his wife, Ms. Singer.”7 Thus, because a determination was made that Tapia reasonably believed he had to act to defend against Pages’ imminent use of “unlawful force” upon Tapia’s wife, Tapia was justified in the use of non-deadly force under section 776.012, rendering unnecessary any further discussion of the alternative provisions or requirements of section 776.013(3).

We conclude that there is competent substantial evidence to support the magis*541trate’s findings, and the trial court properly adopted the Report and Recommendation and dismissed the claims against Tapia. See In re Drummond, 69 So.3d 1054, 1056 (Fla. 2d DCA 2011) (holding “a trial court must accept the magistrate’s findings of fact if they are supported by competent, substantial evidence.”)

Affirmed.

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 McDonough 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 Mc*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: “[T]respassers 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.

All Justices concur except LARSON, J., who dissents.

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.