The plaintiffs, Kathryn Allen and her husband, John Allen, appeal from a summary judgment for the defendants, Richard Walker and the United Paperworkers International Union, Local 719 ("the union"), in an action that involved claims of assault and negligence as to Kathryn. John alleged a loss of consortium. The Allens' complaint alleged that Walker had threatened Kathryn, and it included her employer, Gulf States Paper Company, and Herb Coley, the plant supervisor, as defendants. The complaint also stated numerous other theories of recovery that are not relevant to this appeal. The trial court dismissed Gulf States and entered a summary judgment for Coley. The Allens' appeal as to Gulf States and Coley was untimely and has been dismissed by this Court. This opinion will be restricted to a discussion of the Aliens' allegations of assault and negligence against Walker and the union.
Kathryn and Walker were employed at Gulf States' plant in Demopolis and were members of the same union. During a conversation concerning the proper method of filing a grievance against Gulf States with the union, Walker allegedly shook his finger in Kathryn's face. Kathryn told Walker that the last man who pointed his finger at her "was sorry that he did it." Walker then allegedly stated that he would "whip [Kathryn's] ass anytime, anywhere." The conversation then ended and Kathryn returned to work. The next day she and Walker had a second confrontation, during which Walker allegedly repeated his earlier threat. Following that second incident Kathryn became "agitated and upset" and reported Walker's threats to her supervisor.
Holcombe v. Whitaker,"An assault consists of '. . . an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.' Western Union Telegraph Co. v. Hill,
, 25 Ala. App. 540 542 ,, 150 So. 709 710 [cert. denied,, 227 Ala. 469 ] (1933)." 150 So. 711
Kathryn argues that Walker's alleged threats, when combined with the fact that he shook his finger in her face during their first conversation, created a question for the jury on the issue of assault. She contends that Walker's actions were similar to those of the defendant in Holcombe, supra. InHolcombe the defendant, Holcombe, repeatedly threatened to kill the plaintiff, Whitaker, if she filed a lawsuit against him. When Whitaker filed her action, Holcombe came to her home, beat on the door, and attempted to pry it open, while repeating his threats to kill her. Holcombe,
"We cannot say, as a matter of law, that this was not sufficient to arouse an apprehension of harm or offensive conduct. We think it was a jury question, as was the question of whether the defendant had the apparent ability to effectuate the threatened act."
Although the facts in this case are not as strong as those inHolcombe, we cannot say that, as a matter of law, Walker's acts and threats could not create a reasonable or well-founded apprehension of imminent physical harm. Western UnionTelegraph, supra. There was evidence that, after Walker's first alleged threat, Allen walked away. That evidence is not conclusive, however, as to whether she discounted the threat or whether she left to avoid the threatened harm. She also testified that, after the second alleged assault the next day, she had to leave work because she was so frightened and upset.
After reviewing the evidence before the trial court in a light most favorable to the non-movant, as this Court must do when reviewing a summary judgment, Turner v. Systems Fuel,Inc.,
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and JONES, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.