#### John H. McGlothlin, Appellee, v. Herman Peters, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at, the October term, 1915.

Reversed and remanded.

Opinion filed April 21, 1916.

Statement of the Case.

Action by John H. McGlothlin, plaintiff, against Herman Peters, defendant, for assault and battery. From a judgment for plaintiff, defendant appeals.

The plaintiff claimed that while standing in a gap in a hedge along a highway, he was struck on the *182head by a bottle thrown by the defendant from a passing automobile.

Abstract of the Decision.

I. Appeal and error, § 1236 * —when objection as to lack of evidence may not be raised on appeal. Where the sole defense to an action for assault and battery was that the defendant did not commit the act alleged to have constituted the assault and battery, held that the contention, that a judgment for the plaintiff could not be sustained because there was no evidence of intent to commit the act, could not be raised for the first time on appeal, though the declaration did not allege negligence.

2. Assault and battery, § 15*—when malice is question for jury. In an action for an assault and battery, the question of malice is for the jury.

3. Assault and battery, § 14*—when evidence sufficient to show malice. In an action for assault and battery, malice may be inferred from evidence showing that the act complained of was committed with a wanton, wilful or reckless disregard of the plaintiff’s rights.

4. Assault and battery, § 22*—when instruction on punitive damages improper. The mere throwing of an empty bottle from a passing automobile into a hedge along the side of a country highway, where no persons are in view or where the one throwing the bottle might not reasonably expect any person to be, held not such an unlawful act as to make it wanton or malicious, or a reckless disregard of a person struck therewith, so as to warrant the giving of an instruction on punitive damages.

H. H. Willoughby, for appellant; Edward C. Knotts, of counsel.

Robert H. Patton, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Eldredge

delivered the opinion of the court.