Part 1
Smith v. Stolberg, 256 Mich. App. 231, 103 N.W. 2d 586 (1998).

Facts: Stolberg pushed Smith into a bench during a court appearance. Stolberg claims Smith pushed him into the bench whereas his back hit the bench causing him to launch forward onto the floor. Smith claimed that Stolberg spit and raised his hand at him and he pushed him as self-defense. Smith filed a complaint against Stolberg for assault, battery, and negligence. The plaintiff then filed a first amended complaint for negligence only. The plaintiff is essentially claiming an intentional, offensive touching. Therefore, the plaintiff’s proper cause of action is intentional tort of battery, not negligence. The trial court granted in favor of the defendant in regards to plaintiffs negligence claim.
Issue: Can Smith be held liable for assault and battery since Stolberg amended his assault and battery complaint?
Rule: The intention to do harm is the essence of an assault. In actions to recover assault does not apply to actions to recover for assault and battery. Battery is a general intent offense. The defendant does not need to intend specific harm, but only commit an act of unwanted contact. If the wrongdoer only intended an assault but did not intend to actually hurt the person, but yet made contact with the person, both an assault and a battery have occurred. The plaintiff does not have to prove an actual physical injury. The plaintiff only needs to prove an unlawful act, MCL 600.5805. Once there is harm all elements of battery are present. Espinoza v. Thomas, 189 Mich.App. 110, 119, 472 N.W.2d 16 (1991). The Circuit Court of Lapeer did find that Stolberg did intentionally push Smith into the bench causing him to hit the floor. However, Smith argued the fact that he was not informed of the assault and battery complaint since Stolberg amended his complaint, MCR 2.111 (B)(1) provides that a