(concurring). It was a summer evening on the road in front of Eehrman’s saloon. The plaintiff was at that stage of young womanhood when her face was a considerable part of her fortune. The defendant was one of those young men who find it difficult or impossible to combine dexterity with celerity. With others they formed a friendly group, in the midst of which defendant turned around hastily while holding in his hands a beer glass which he seemed desirous of replenishing. In turning he unintentionally brought the beer glass in contact with plaintiff’s face, - cutting her lips and breaking several of her teeth. After one year and before two years she began this action against him. No notice was given as required by sec. 4222, Stats. (1898). The complaint avers that the defendant “did carelessly and negligently strike said plaintiff a severe blow in the face with a heavy beer glass.”
The question for determination is whether the notice required by sec. 4222, Stats. (1898), should have been given. After six years from the time the cause of action accrued there is barred by subd. 5 of sec. 4222 “an action to recover damages for an injury to property, real or personal, or for an injury to the person, character or rights of another not arising on contract, except in case where a different period is expressly prescribed.” After two years from the time the cause of action accrues there is barred by subd. 2 of sec. 4224, Stats. (1898), “an action to recover damages for libel, slander, assault, battery or false imprisonment.” In cases' falling Avithin subd. 5. sec. 4222, unless the action is begun within a year notice of injury must be given within one year after the happening of the event causing such damages. In *530cases falling under subd. 2 of sec. 4224 such, notice is not required. It is contended that wherever an action of battery or trespass vi ei armis at common law could he maintained the case falls within subd. 2 of sec. 4224, that the case at bar is such a case, and therefore no notice was necessary. But the case at bar was one in which either an action on the case or an action for battery, at the option of the plaintiff, might have been maintained at common law. In Howard v. Tyler, 46 Vt. 683, a case decided as late as 1874, the court said:
“Without entering the field of discussion that has been so fruitful of legal learning and ingenuity in the attempt to define and apply the distinction between the action of trespass and case, it is sufficient to say that the rule seems now to be well established by the authorities that when the injury to the plaintiff results from the immediate force of the defendant, and is caused by his carelessness and negligence, and is not wilful, the plaintiff can maintain either trespass or case” — referring to vol. 1, part 2, Hare & Wallace’s notes to Smith’s Leading Oases, marg. p. 554.
In Dalton v. Favour, 3 N. H. 465, an action for damages arising from personal injury, it was ruled:
“In all cases where the injury is attributable to negligence, although it were the immediate effect of the defendant’s act, the injured party has an election either to treat the negligence of the defendant as the cause of action and declare in case, or to consider the act itself as the cause of the injury and declare in trespass” — citing authorities.
Perhaps no better evidence of what the common law was on this subject could be found than Chitty, Pl. (16th Am. ed.) *142, *143, and cases in notes.
In a state like this, where the common-law forms of action are abrogated and where the statute of limitations not only bars the remedy but extinguishes the right, it would be unreasonable to hold that the cause of action in the case at bar fell within one or the other of these different statutes of *531limitation, depending upon whether the plaintiff elected to charge that the act was negligently done or to charge a battery not wilful. Kegardless of the form of averment and looking to the real nature of the tort, we must range the action under one or the other of these two statutes. I believe it should fall under subd. 5 of sec. 4222, because that is the more comprehensive statute of the two, because of the associated words in subd. 2 of sec. 4224, and because a clear and positive division line may be drawn which will answer the exclusion of this case in any phase thereof, and all like cases, from subd. 2 of sec. 4224, and bring it and them within the other statute. That is to say, libel, slander, assault, battery, or false imprisonment referred to in subd. 2 of sec. 4224 cover a class of intentional wrongs. Assault, as well as battery, in the last-mentioned section, refers sto the action for civil damages for an assault, or for an assault ,and battery where the wrong is intentional, and subd. 5 of sec. 4222 refers to all other injuries to the person. Cases of personal injury are therefore classified under one or the other of these subdivisions, not by a consideration of whether the injury or damage is the immediate effect of the defendant’s act or the indirect effect of such act, but upon considering whether the injury was intentional or inadvertent. This view finds support in Ott v. Great N. R. Co. 70 Minn. 50, 72 N. W. 833; Perkins v. Stein & Co. 94 Ky. 433, 22 S. W. 649; Rieger v. Fahys W. C. Co. 13 N. Y. Supp. 788. The result is reversal and dismissal.