Carter v. Bedortha

Grant, J. (after stating the facts). 1. The plea was the general issue. Defendant was permitted, under objection and exception, to introduce evidence in regard to the treatment of these children by plaintiff’s son and herself. It is urged that these were matters of justification, and inadmissible without notice. They were not admitted for that purpose, but for the purpose of showing the motive of the defendant in going to the plaintiff’s house. The court instructed the jury that the defendant was guilty of trespass. We think the testimony was admissible. The jury had the right to consider the motive of defendant in going to the house. No injury was done to the realty, no bodily injury inflicted, and the only damage plaintiff could recover would be for an injury to her feelings. In such case the reason for entering, and all the circumstances attending it, were competent for the jury to consider. 2. Complaint is made because certain questions were asked in the presence of the jury, although the judge promptly ruled them incompetent, and they were not answered. We find nothing in them to justify a reversal of the case on this ground. Cases are very rare, the circumstances must be very aggravating, and the prejudice very apparent, to justify a reversal of a case because counsel have asked incompetent questions, which the court refused to allow. 3. Plaintiff complains that the court, by its charge, took away from the jury the right to consider the aggravated circumstances of the trespass in assessing the damages. We need not cite authorities to sustain the proposition that damages for trespass may be enhanced by the aggra [551] vated circumstances under which it was committed, and that the language used by, and the motive of, the trespasser, are competent to be considered in that connection. If, therefore, the court had its attention called to this subject, and failed to so instruct the jury, it would be manifest error. In commencing his instructions the court said that the declaration contained two counts, — one for trespass to real estate, and the other for assault. Thereupon the attorney for the plaintiff interrupted the court, stating that there was only one count. The court thereupon said: “There are two claims, — one for trespass, and the other for assault.” He then stated that on the question of assault there were two questions: (1) Whether there was an assault. (2) If there was, what were the damages to be allowed for it ? The correctness of this statement was not challenged by the attorney. It was evidently strenuously argued before the jury, as it is argued in this court, that there was an assault. The court then correctly instructed the jury as to the measure of damages if an assault was committed, telling them that the real injuries might be enhanced by evidence of malice on the part of the defendant, and that plaintiff could recover for injuries to her feelings, such as a sense of shame, mortification, humiliation, shock, and fright. We think it manifest that the circuit judge submitted the case to the jury upon the theories upon which it was argued by counsel. The jury found that there was no assault, and the judge instructed them that, for the trespass, plaintiff could recover only nominal damages. If it clearly appeared that this point was called to the attention of the court, we should be compelled to reverse the judgment. If the court had been requested to instruct the jury that the measure of damages for the trespass might be enhanced by the commission of an assault, or the use of abusive language, it would have been error.to refuse it. This is not a case to justify its reversal upon technicalities, or to hunt for grounds of error. Plaintiff, from her own statement, was not frightened, nor were her feelings [552] seriously injured. Her character appears in the following testimony: ‘ ‘ In answer to Mr. O’Hara — he asked you what you did to keep the Jews away — you said Lome [her son] rubbed pork on her face ? “A. Yes, sir. “Q. He did it by your orders? “A. Never, sir. I didn’t order him to do it, but I didn’t care if he did. It happened in the kitchen at my place. “ Q. Was that the only time he ever rubbed pork on her face? _ “A. No; he run her out of the house one day with a piece of pork; rubbed her face with it, too. “Q. He crowded it down her throat at that time, didn’t he? “A. He said he was afraid he would choke her. ” Inasmuch, therefore, as there is nothing upon this record to indicate that this matter was called to the attention of the judge, or a request made, we decline,to reverse the judgment. Judgment affirmed. The other Justices concurred.