(dissenting). This is an action for assault and battery brought by the plaintiff against the police officer who placed him under arrest. Following the taking of testimony, the trial court found that as a matter of law there was probable cause for the arrest and that the officer did not use excessive force in arresting the plaintiff. These findings are unchallenged on appeal.
One begins diagnosis of the strange and strained conclusion reached by the majority with noting that every arrest involves some measure of force or restraint.1 The arresting officer has not only the right but the duty to “. . . use such force as may reasonably be necessary in the enforcement of law and the preservation of order, and he is not civilly liable for such force exerted on the person of another.” 2
However, while the arresting officer is entitled and mandated to use such reasonable force as is necessary to carry out his duty to arrest, such officer “. . . is liable for assault and battery if on that occasion he *597inflicts physical injury by using force not necessary to subdue the prisoner or to effect his incarceration, or unnecessarily subjects the prisoner to indignities of a physical nature. ...” 3
Here there was a striking of the plaintiff by the arresting officer and plaintiff’s complaint alleged that the officer “used excessive force.” Established, this would constitute a successful claim of assault and battery against the arresting officer. However, the trial court found, as a matter of law, that excessive force was not used by the arresting officer. No objection to such finding is made on appeal, and it disposes of any claim of right to prevail on the basis of battery against the arresting officer.
However, the plaintiff alleged in his complaint that the arresting officer “negligently used excessive force” in making the arrest. The majority concurs with the trial court that the single added word “negligently,” prefacing the claim that excessive force was used, was sufficient to constitute the pleading of a separate and alternative cause of action for “negligence” on the part of the officer in making the arrest. So a judgment in “negligence” is sustained in an action for battery where battery was not proved.
There are a number of things entirely wrong with the salvage operation thus conducted.
As here used to describe or label the use of excessive force, the word “negligently” is inappropriately used. One does not “negligently” commit a battery. A battery is striking of the person of another by an aggressor “. . . done with the intention of bringing about a harmful or offensive contact . ...” 4 An act of negligence is “a violation of the duty to use care.” 5 When one uses a firearm with intent to kill, and succeeds, the *598crime is murder in the first degree,6 not homicide by negligent use of a firearm.7
If stretched to hold that the plaintiff was alleging that the excessive use of force constituted either or both a battery and an act of negligence, there would have to be additional allegations of the essential elements of each cause of action, which are not stated in the alternative, in order to avoid a collision with this court’s holding that “. . . Under the authorities, allegations in the alternative are fatally defective. ...” 8
If tortured beyond recognition to hold that the plaintiff, without so stating, was alleging two causes of action, one in battery, one in negligence, there is no way for court, jury or adversary counsel to know what was claimed to constitute negligence, separate and distinct from the battery complained of. The majority concludes the jury put out of mind the striking and tire shooting and found “negligence” in the officer not having promptly identified himself as a law officer. Asked during oral argument what act the jury had found to have been negligent, plaintiff’s counsel answered, “Probably the officer having two guns, not one.” What could be “negligent” about a police officer having two guns is hard to see, but, on this record, one guess is as good as another. There is no way to separate battery from “negligence” in pleadings, proceedings, jury instructions or jury verdict on this record in this case.
No matter how viewed or construed, the added word “negligently” is surplusage for the reason that there is no basis, or, at least, has not been up to now any basis for an action in negligence brought by a person lawfully placed under arrest against the police officer who arrested him. Nowhere, as far as this writer can find, is there *599any authority for holding a police officer, making a lawful arrest and not using excessive force in so doing, liable in “negligence” for the manner in which the arrest was made. An arresting officer is liable in battery if he uses excessive force, and that is the sole basis and limit of his liability.
The majority cites no authority or precedent for its opening up a whole new area of potential police liability in making arrests. The reason for this is that there is no precedent or authority. In all fifty states, and in the federal courts as well, one searches in vain for an exposure of arresting officers to civil liability where the arrest was lawful and no excessive force was used. The majority puts two arrows, not one as before, in the quiver of all who would challenge the execution of an entirely lawful arrest.
Up to now, in this state, the law has been clear that a claim of civil liability of an arresting officer must be founded on a claim of battery or excessive force. Any accompanying claim of “negligence,” this court has held, is “surplusage.” This was made crystal clear in an action for damages for injuries suffered by an elderly plaintiff who was forcibly removed by a police officer from a public hearing in a city council chamber.9 There plaintiff’s complaint originally alleged that the police conduct constitued “gross negligence.” Plaintiff moved to amend, striking out the words alleging “gross negligence.” The amendment was granted with the condition that the defense would be permitted to present all affirmative defenses to ordinary negligence such as contributory negligence. As this court noted, “The form of special verdict reflected, in part, the theory that defendants were charged with negligence and, in turn, charged plaintiff with contributory negligence. . . .” 10 This cannot be done, Schulze held.
*600In the Schulze Case, the parties sought to do exactly what the majority here does for one of the parties: Add the dimension of “negligence” to an action against a police officer for use of excessive force in making a lawful arrest. All questions in the special verdict relating to “negligence” were held by this court in Schulze to be “surplusage.” 11 Said this court then: “. . . Once the jury determined that LeMoine used excessive force, the only remaining question pertinent to liability was whether the excessive force caused the injury.” 12 Clearly, if the jury had found no excessive force was used, no question pertinent to liability would have remained.
If “negligence” had been accepted in Schulze as a basis for civil liability of a police officer in making a lawful arrest, it would follow that, in that case and this one, the negligence, if any, of the arrested person would also he material and an issue for the jury.13 If a separate cause of action based on alleged and identified acts of “negligence” had been set forth in plaintiff’s complaint in this case, defendant could have answered and counterclaimed under the comparative negligence law,14 with the right to all affirmative defenses in an ordinary negligence action. The interest of justice would then, at the least, require reversal here and retrial to give defendant the right to responsively plead and assert defenses to the cause of action for “negligence,” including raising the issue of negligent conduct on the part of the plaintiff.
*601However, by striking all references as to “negligence” in pleading, instructions or verdict as improper, this court, in Schulze, made clear that a police officer, in making a lawful arrest, is civilly liable only for battery or use of excessive force. This court dealt in Schulze with what it termed the applicable “theory of the case” against the police officer, stating:
“. . . the mayor’s order gave LeMoine [the police officer] the right to use force to remove Mr. Schulze [the plaintiff] from the council chamber. He was privileged to use whatever force was reasonably necessary to effect removal. If he used more force than reasonably necessary, it constituted an assault and battery. [Authorities cited.]” 15
That is the law in every jurisdiction in this land, and, up to now, the law in this state. In the case before us, as in Schulze, the only basis for civil liability of the police officer, in making a lawful arrest, is that excessive force was used in making the lawful arrest involved. This is a claim of battery and the references to “negligently” in the complaint, instructions and verdict are indeed “surplusage.”
The defendant’s motion for directed verdict, in the light of the trial court’s unchallenged finding that as a matter of law there was probable cause for the arrest and that no excessive force was used, should have been granted. The writer would reverse, directing that defendant’s motion for directed verdict be granted and plaintiff’s complaint dismissed upon the merits.
I am authorized to state that Mr. Justice Bruce F. Beilfuss and Mr. Justice Leo B. Hanley join in this dissent.
“. . . There can be no arrest where there is no restraint or where the person sought to be arrested is not conscious of any restraint.
“The mere fact that an officer makes a statement to an accused that he is under arrest is not sufficient to complete the arrest. But if an officer having authority to make an arrest lays his hand upon the person of the suspect, however slightly, with the intention of taking him into custody, it is an arrest, even though the officer may not succeed in stopping or holding the suspect even for an instant. ...” 5 Am. Jur. 2d, Arrest, pp. 695, 696, sec. 1.
6 Am. Jur. 2d, Assault and Battery [by a peace officer], p. 105, sec. 125. See also: 3 A. L. R. 1170; 42 A. L. R. 1200.
Id. at page 106.
6 Am. Jar. 2d, Assault and Battery, p. 10, sec. 5.
57 Am. Jur. 2d, Negligence, p. 333, sec. 1.
See: Sec. 940.01, Stats.
See: Sec. 940.08, Stats.
Pavalon v. Thomas Holmes Corp. (1964), 25 Wis. 2d 540, 549, 131 N. W. 2d 331.
Schulze v. Kleeber (1960), 10 Wis. 2d 540, 103 N. W. 2d 560.
Id. at page 543.
Id. at page 546.
Id. at page 546.
Id. at page 545, stating: . . For some reason (perhaps the type of insurance coverage available to defendants, or some similar consideration), the parties treated the use of excessive force as merely negligent conduct, and considered that the comparative-negligence statute would apply if plaintiff was negligent and the injury was caused by the conduct of both.”
See: Sec. 895.045, Stats.
Schulze v. Kleeber, supra, at page 545.