Bennett v. Fleser

Plaintiff and her husband and their young son lived at Burnips Corners in Allegan county in June, 1921. On the night of the 3d, while the husband was in Grand Rapids, a number of persons, alleged to be the defendants, came to her home, broke a window of her sleeping room, forcibly pulled her through the opening, stood her up against the wall and threw eggs at her, some of which struck her and others the wall of the building. They then insisted on her washing the discoloration on the building and dressing herself preparatory to taking her to Grand Rapids, but finally concluded to and did leave her at home. This action is brought by her to recover damages for the unwarranted assault and the "pain, humiliation, annoyance, suffering and mental distress" caused thereby. At the close of plaintiff's proofs, a verdict was directed in favor of the defendants John Brower, Fred Hildebrand and John Lippert, and at the close of the proofs in favor of Margaret Hildebrand. She had verdict and judgment for $2,000. The remaining defendants review the judgment entered by writ of error. 1. It is strenuously insisted that there was no evidence to support the verdict against John Hildebrand and May Hildebrand and that a verdict should have been directed in their favor as requested. It appeared that a number of those present had placed handkerchiefs over their faces to conceal their identity. Plaintiff, on being asked to state whom "among the mob" she recognized, named a number of persons, including John Hildebrand. William Brenner, who arrived on the scene about the time plaintiff was compelled to wash the wall of the building, testified that John Hildebrand was there. Searle Bennett, plaintiff's 12-year-old son, who was with her in the house, testified that he recognized John Hildebrand by his voice and that he had a mask on. Plaintiff testified *Page 226 that May Hildebrand was present and Searle testified that she was among those who pulled his mother out of the window. There was proof to the contrary as to both of these defendants, but we think an issue of fact was presented which it was the duty of the court to submit to the jury. Error is assigned on the refusal to instruct as to these defendants as preferred in the 8th request to charge. While this request might well have been given, we are of the opinion that, in effect, it was fairly covered by the charge. In view of the conclusion we have reached that a new trial should be had, it is unnecessary to consider the assignment that the verdict as to these defendants was against the clear weight of the evidence. 2. Error is assigned upon the restriction placed upon the cross-examination of the plaintiff. This is perhaps best shown by the following from the record: "Mr. Hoffman: May it please the court, in this case, as I understand the declaration, the plaintiff claims damages for humiliation and suffering caused by this assault and we are asking the right to give evidence tending to show that she was not a refined person or a person of refined sensibility, and that prior to the time in question she had been guilty of making lewd and indecent remarks in the presence of and to the girl Lillian and the boy Joe Goodman, whose adoptive mother is a defendant, and that she had, before this time, committed various immoral acts with one Henry Fleser, who is one of the defendants, and with one Goodman, a young man of that community; and that these facts had come to the knowledge of the defendants, Katie Fleser and Jacob Hildebrand and his wife, and that whatever they did on this night in question was done because of their personal knowledge of these acts and because of rumors to the same effect, and that while we do not offer it in justification, we do offer it in mitigation of damages. "The Court: It will not be received, not competent. "Mr. Hoffman: I also claim the right, as part of the cross-examination of this witness, as bearing upon her *Page 227 credibility, to ask her about these various transactions to which I have referred. "The Court: Some part of those things might, perhaps, be competent as bearing upon the witness's credibility, but there is no justification, could not be any justification for any of the acts that the plaintiff claims were perpetrated that night, if they were perpetrated. "Mr. Hoffman: Oh, I agree, your honor, as to the understanding of the rule. I do not wish to keep asking questions apparently in defiance of the court's ruling. I trust your honor understands that. "Mr. Schurtz: It strikes me, your honor, that he is trying to impeach the witness on entirely collateral matters having nothing to do with the case, besides being immaterial. "Mr. Hoffman: I am willing to accept the ruling when I get it. "The Court: I do not think I will take any of that testimony for any of those purposes. It certainly could not be used for justification. People are not justified in assaulting others because they think somebody else is not living just the kind of a life they should. I think I will exclude the whole testimony for the purposes for which it is offered." In his instructions to the jury the court said: "Now, I might call your attention to this: It is also the claim of the defendants, although they are not justified in it, because, as I have said, there can be no justification, if these people went down there to see something about a young lady, now, was that intentional, innocent or not? How did they go down there? Were they masked? Did the women go down there with men's clothing on? How did they go down there? You must find from the evidence some of these people talked before they went down there. What is the fact, about their going down there? Did they go down there masked? Did these women that went down there go down there with men's clothing on, or with garments on that resemble men's clothing? What did they do when they got down there? Consider all these things as bearing upon the question of *Page 228 whether these people went down there in good faith to make inquiry about any one." This was followed by instruction that if the jury found that — "the attack upon plaintiff was as claimed by her, malicious and wilful, and made under such circumstances as to cause her suffering and injury to her feelings and that she has suffered by reason of any of her feelings being outraged, you may, and should include in the sum awarded to her, the damages she sustained by way of compensation and by reason of the malicious attacks upon her, if you find they were malicious. "The damages she is entitled to, if you find she is entitled to any, is such a sum as will fairly and fully compensate her for all injuries she has sustained, including damages for any physical injury and for all subsequent pain and suffering, if any; damages for wounded feelings, mental suffering, humiliation, degradation and disgrace, if any, that resulted to her by reason of the attack upon her there at her home that night." There was no notice of justification and none could be proven. The assault was unjustified. The defendants had no right to seek to redress a real or fancied grievance by the means employed. Their conduct was unlawful, and plaintiff was entitled to such damages as would compensate her for the injuries she sustained. We find no error in the court's instructions in this respect. The court, however, called attention to the manner in which the defendants disguised themselves and told the jury to consider that fact and what they did while there — "as bearing upon the question of whether these people went down there in good faith to make inquiry about any one." Plaintiff was asked, "And the day before didn't Mrs. Katie Fleser come to your store to see you?" An objection of plaintiff's counsel was sustained. If the *Page 229 good faith of the defendants in going to plaintiff's home was in issue, it was clearly error not to permit defendants' counsel to show, on cross-examination of plaintiff, facts bearing upon it. Had the plaintiff but related what was said and done by the defendants at her home and described the physical injuries she received and given expression to the mental suffering, humiliation and disgrace felt by her, her damages would have been restricted to such as were actual and the amount to a sum which would fairly compensate her therefor, and there could be no mitigation thereof. No question of the "good faith" of the defendants would be presented. The examination of plaintiff and her witnesses by her own counsel disclosed the fact that the defendants had a motive for what they were doing; that they were seeking a young girl, Lillian, the adopted daughter of the defendant Katie Fleser. The plaintiff, in effect, denied that she was harboring this girl and said that she was in Grand Rapids. From her testimony and that of her witnesses, the inference might fairly be drawn that the assault was actuated by vindictive feelings towards her by the defendants and was "malicious and wilful." While the declaration did not so allege, it was said inWise v. Daniel, 221 Mich. 229, 234: "The accompanying circumstances aggravating the injury by reason of the wanton and malicious conduct of the defendant need not be specially pleaded for they are not substantive elements of damages, but only serve in the capacity of characterizing the acts complained of and as an aid in measuring compensation to be awarded." Feelings of shame, mortification and disgrace were but the natural results of the treatment of plaintiff, and she was entitled to recover actual damages therefor. Ross v. Leggett,61 Mich. 445, 453 (1 Am. St. Rep. 608). As the assault was not justified, the *Page 230 motive behind it was immaterial in determining such damages and there could be no mitigation thereof. But when the jury were instructed that the good faith of the defendants was involved, that they might consider the fact that defendants went to her home masked, and, if they found that the attack "was as claimed by her, malicious and wilful," they might consider this fact in their award of damages, they were in effect told that they might, as was said in Wise v. Daniel, supra, "enlarge the compensatory allowance" by reason thereof. If this issue was to be passed upon by the jury, the defendants were entitled to meet it by proof in the way of denial and also by proof in mitigation of such damages. The applicable rules are well stated in Scripps v. Reilly, 38 Mich. 10, 23. It is said: "5. Where, however, the elements exist in a case, entitling a party to recover damages for injured feelings, the amount to be allowed for shame, mental anxiety, insulted honor, and suffering and indignation consequent on the wrong, may be increased or aggravated by the vindictive feelings or the degree of malice, recklessness, gross carelessness or negligence of the defendant, as the injury is much more serious where these elements, or either of them, are shown to have existed. "6. This increase of damages dependent upon the conduct of the defendant must be considered in this State as actual damages, although usually spoken of as exemplary, vindictive or punitory, and the amount thereof to be recovered, where recoverable at all, as they are incapable of ascertainment by any other known rule, must rest in the fair and deliberate judgment and discretion of the jury acting upon their own sense of justice in view of all the circumstances, both mitigating and aggravating, appearing in the case, and which can fairly be said to give color to or characterize the act, aided, however, by such instructions from the court as will tend to prevent the allowance of damages merely fanciful, or so remote as not fairly resulting from the injury." *Page 231 The personal indignities of which plaintiff complains were such as would wound the feelings and cause humiliation and disgrace to any female, and she is entitled to compensatory damages therefor. Where, however, it is sought to increase such damages by reason of the vindictive feelings and the malice and wanton conduct of the assailants, the defendants should be permitted to show any facts fairly tending to mitigate such damages. A woman of a refined, sensitive nature would suffer much more by reason of such indignities than one who by her manner of life has rendered herself insensible to the good opinion of her neighbors or those who know her. What may be felt to be a great indignity by one person may not be so regarded by another. If the conduct of the plaintiff had been such as would render her impervious to the good opinion of others, it cannot be said that she would feel as great humiliation or shame on account of the outrage as she would if she had led a blameless life. And if not, the jury should consider this fact in determining to what extent, if any, the damages naturally resulting from the unjustifiable assault should be increased by reason of the wilful and malicious conduct of the assailants. Much latitude should be allowed in the cross-examination of witnesses, particularly a party to the action, on all matters affecting their credibility. No more definite rule can be laid down. While witnesses cannot be impeached as to answers given relating to collateral matters, they may be interrogated as to any facts which will aid the jury in determining the weight to be given to their testimony. The trial court can usually be relied on to exercise a wise discretion in such matters. We are persuaded that the ruling of the court as to the admission of proof, in view of the charge as given, constituted error so prejudicial as to necessitate a reversal of the judgment. *Page 232 The judgment should be reversed and a new trial ordered, with costs to appellants. WIEST, C.J., and McDONALD and CLARK, JJ., concurred with SHARPE, J.