Geary v. Cain

• Decision Date: 03 January 1927
• Docket Number: 4468
• Citation: 255 P. 416,69 Utah 340
• Court: Utah Supreme Court
• Parties: GEARY v. CAIN

255 P. 416

69 Utah 340

GEARY v. CAIN

No. 4468

Supreme Court of Utah

January 3, 1927

Rehearing Denied March 14, 1927.

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by Rachel P. Geary against Addison Cain. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Hutchinson & Hutchinson, of Salt Lake City, for appellant.

Hurd &amp Hurd, of Salt Lake City, for respondent.

THURMAN, J. GIDEON, C. J., and FRICK and CHERRY, JJ., concur. STRAUP, J., dissenting.

OPINION

THURMAN, J.

This is an action to recover damages for numerous alleged assaults by the defendant upon the person of plaintiff alleged to have occurred in Salt Lake City, Utah, on and between July 14 and December 5, 1924.

The complaint, in substance, alleges that during all of said times plaintiff resided in the Kelvin Apartments, in said city; that on July 14, 1924, defendant wrongfully, unlawfully, and maliciously assaulted, beat, maltreated, abused, and indecently assaulted her; that he then and there seized and grabbed plaintiff and violently took hold of her person and pushed her violently against the casing of the bathroom door in the apartment below plaintiff's said home, and violently seized and laid hold of her breasts and person and squeezed and maltreated the same, and then and there said, "I have a fine set of tools and no place to use them; you've got to be mine; you've got to come through;" and then and there endeavored to force and compel plaintiff to have sexual intercourse with defendant. Similar acts on the part of defendant are alleged in the complaint as having occurred on August 10, 1924, with the addition that on that occasion defendant "laid hold" of her privates and said, "when are you going to do as I want you to do?" With intent then and there to compel plaintiff to submit to and have sexual intercourse with the defendant. Similar acts on the part of defendant are alleged to have occurred on October 16, 1924, while plaintiff was still suffering physically and mentally from the aforesaid wrongful acts of the defendant, and in addition it is alleged that on that occasion defendant wrongfully, unlawfully, and maliciously seized and laid hold of plaintiff and her said person and ran his hand down the neck of her dress and seized and laid hold of her breast and squeezed it with such force and violence and caused her such pain and suffering, mentally and physically, that plaintiff was thereby prostrated, and that she fainted and fell to the floor and was obliged to and did take to her bed because of such injuries. Similar conduct on the part of defendant with similar results to plaintiff is alleged to have occurred on December 5, 1924. All of the aforesaid acts of defendant are alleged in the complaint as having been committed without plaintiff's consent and against her will. Finally, it is alleged in the complaint, that prior to said wrongs and injuries plaintiff enjoyed good health and was free from insomnia, hideous and disturbing dreams, and other nervous complaints, but that by reason of said wrongs and injuries plaintiff was confined to her bed continually for a period of seven weeks, and was obliged to and did employ physicians and nurses to care for her during said time. It is also alleged that by reason of said wrongs and injuries she has suffered and been caused great mental and physical pain, and has been made sick, sore, and lame in her body, and particularly in her chest and breasts, to such an extent as to render her permanently injured, as she is informed and believes, and therefore alleges, that her nervous system has been so badly shocked, impaired, and injured thereby as to render it impossible for her to sleep at night, and she has thereby been caused to have hideous dreams and nightmares, and has been broken in her health and strength, and upon her information and belief alleges that said injuries will be permanent. In addition to expenses incurred for medical treatment and nurse hire, plaintiff prays for damages in the sum of $ 25,000.

Defendant, by way of answer to the complaint, denies each and every allegation thereof.

The jury, to whom the case was tried, rendered a verdict for the plaintiff in the sum of $ 15,000, as actual damages, and $ 5,000, as exemplary damages.

Defendant moved for a new trial on numerous grounds, among others that the damages were excessive, appearing to have been given under the influence of passion or prejudice.

The court entered an order that the damages be reduced to the sum of $ 10,000, but allowed plaintiff in addition thereto, for actual expenditures, a sum not exceeding $ 500. In the event plaintiff refused to allow said reduction, defendant would be granted a new trial. Plaintiff consented to the reduction; defendant's motion for a new trial was denied, and judgment was thereupon entered for $ 10,410. Defendant appeals. The errors relied on are certain instructions of the court and the refusal of the court to grant defendant a new trial.

It appears from the evidence that plaintiff was in possession of the Kelvin Apartments, in which she made her home, from September, 1922, until November, 1923. At that time the defendant purchased the property, and plaintiff continued as a tenant, and was employed by defendant as janitress of the apartments. Plaintiff was and is a married woman, and her husband resided with her in the apartment.

It is not our purpose in this connection to enter into detail in stating the evidence. It is sufficient for present purposes to state that the allegations of plaintiff's complaint were substantially sustained by plaintiff's testimony and in some material particulars corroborated by the testimony of other witnesses.

Appellant assigns as error the giving of instruction No. 4, which reads as follows:

"You are instructed that any wrongful touching of the person of another constitutes an assault; and, if you believe from the evidence in this case that the defendant, Addison Cain, did make an assault upon the person of the plaintiff, Rachel P. Geary, by making use of any indecent familiarity toward her, and embracing, touching, or handling her person in an indecent manner, and her without her consent, then your verdict should be for the plaintiff."

The form of the exception taken by defendant was as follows:

"Defendant excepts to instruction No. 4, given by the court, and to the whole thereof, and particularly for the reason that such instruction fails to define in any manner what is a wrongful touching of the person person, under the statute, and further that said instruction fails to define what is meant by indecent familiarity towards the plaintiff, and fails to define, as a matter of law, the term, 'indecent familiarity,' and further that said instruction fails to contain the element of proof necessary on behalf of the plaintiff to justify a verdict."

As the instruction complained of contains at least two distinct propositions of law, it is doubtful if the exception was in proper form. But, as appellant, in an informal way, did refer to certain words in the instruction of which he complains, we are not inclined to be hypercritical as to matters of form. We are, however, of opinion there is no merit in the exception. If there is any doubt as to what constitutes the "wrongful touching of the person," as stated in the first clause of the instruction, the doubt is solved as far as the present case is concerned by what follows in the same instruction. Making use of indecent familiarity by a male towards a female, accompanied by embracing, touching, or handling her person in an indecent manner, without her consent, is undoubtedly a "wrongful touching of the person" and constitutes an assault. As to the term "indecent familiarity," of which appellant complains, it would be a sad commentary upon the intelligence of the jury if we should hold that it was necessary for the court to explain to the jury what was meant by the term. We are assuming that the jury had ordinary common sense, and therefore clearly understood the full scope and meaning of the instruction without a kindergarten explanation by the court.

Appellant also assigns as error instruction No. 6, which reads:

"The court charges you that the law presumes some damage results from every wrongful assault."

The objection to this instruction is that the court failed to define the legal meaning and import of the words "wrongful assault." The jury, as we have seen, had already been instructed as to what constituted an assault. They certainly must have understood that the term "wrongful assault" meant nothing more nor less than the term "assault" as defined in instruction No. 4 above quoted. But instruction No. 4 was not the only instruction given as to what constitutes an assault in a case of this nature. In instruction No. 8 the jury were instructed:

"The court instructs you that, if a man takes improper liberties with a female, or touches, or fondles, or handles her person against her will and without her consent, he is guilty of an assault."

Appellant, however, assigns as error the giving of the instruction last quoted, for the reason that the court failed to define the term "improper liberties with a female." Much that we have already said in connection with the exceptions heretofore considered is equally applicable here. We are compelled to assume that even a tyro in this day and age of the world, in this country at least, knows what is meant by "improper liberties with a female." If he does not, it might be to his interest to learn the meaning of the term in order to keep out of trouble. We find no error in the instructions to the jury.

The principal and most important question presented on this appeal is raised by appel...