¶1delivered the opinion of the court.
¶2That a corporation as such is capable of committing an assault and battery and is liable for it has been often held by our Supreme Court, and is not questioned by appellee’s counsel. And it is quite true—as contended by him—that before a corporation can be held for an assault it must first be shown that it owed some duty to the assaulted person, and facts must be proven out of which the duty arises. So also it must appear that the person committing the assault was acting under the authority of the corporation. But these are all mere evidentiary facts which, while they need not be averred, must still be proven in order to show the ultimate fact alleged in the declaration, that the corporation as such and in its corporate capacity committed the assault complained of. If these evidentiary facts do not appear, the corporation cannot be held for want of proof that it, as such, did any wrong.
¶3In Oliver’s Precedents and Forms, 6th Ed., p. 285, there is a form of a declaration in trespass against a railway company for an assault which is substantially the same as the declaration at bar; and we are cited to no case which supports the contention of appellee. Churchill v. C. & A. R. R. Co., 67 Ill. 390, was an action on the case, not trespass, and upon the facts there appearing had to be such, under the distinction between the two forms of action as explained in St. L., A. & C. R. R. Co. v. Dalby, 19 Ill. 352. On p. 375 the court say :
¶4“ Wherever the command was to do only a lawful act and the servant does it in an unlawful way so as to injure another, case would be the proper remedy. I. C. R. R. Co. v. Reedy, 17 Ill. 580. But where the act is unlawful in and of itself and not from the mode of doing it, trespass would lie.”
¶5In the Churchill case, supra, the defendant company was sought to be held for a lawful act done unlawfully, and it appearing on the face of the declaration that the plaintiff was a passenger on one of its cars and was ejected therefrom because of the refusal of the conductor to accept his ticket which had expired by limitation of time, it was not sufficient to allege that the plaintiff was ejected “ forcibly and with great violence,” as these words were not tantamount to an allegation of the use of excessive force. The company was charged with doing a lawful act in an unlawful manner, and its conductor in ejecting the passenger had the right to use force and violence, provided it was not excessive or more than necessary. In the case at bar the declaration as drawn charges the doing by the defendant, through a servant in its employ, of an unlawful act, and this of course will have to be shown at the trial before appellee will have occasion to defend.
¶6In our opinion the offered evidence should have been received.
¶7The judgment is reversed and the cause remanded.
¶8Reversed and remanded.