Kuhn v. Freund

• Decision Date: 09 October 1891
• Citation: 49 N.W. 867,87 Mich. 545
• Court: Michigan Supreme Court
• Parties: KUHN v. FREUND.

49 N.W. 867

87 Mich. 545

KUHN v. FREUND.

Supreme Court of Michigan

October 9, 1891

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Action by Jacob Kuhn against Herman Freund for assault and battery. Judgment for plaintiff. Defendant appeals. Reversed.

John Miner, for appellant.

Edwin Henderson and James H. Pound, for appellee.

MCGRATH J.

This is a case for assault and battery. The declaration contains three counts. The first alleges that defendant made an assault upon the said plaintiff, to-wit, at the city of Detroit in the county of Wayne, aforesaid, and then and there laid hold of the said plaintiff, and with great force and violence pulled and dragged about him, the said plaintiff and then and there gave and struck the said plaintiff a great many violent blows and strokes, and then and there choked the said plaintiff, whereby he, the said plaintiff, was not only then and there greatly hurt, bruised, and wounded, but was also thereby then and there greatly exposed and injured in his credit and circumstances. The second count was abandoned. The third count is as follows: "And also for that the said defendant on, to-wit, the day and year aforesaid, with force and arms," etc., "made another assault upon the said plaintiff, to-wit, at the city of Detroit aforesaid, and then and there again beat, bruised, wounded, and ill-treated him, insomuch that his life was then and there greatly despaired of, and thereby then and there the said plaintiff was forced to lay out and expend, and will in the future be forced to lay out and expend, large sums of money in and about the curing himself of the several wounds, lameness, and disorders, (which plaintiff avers were thereby by the said defendant then and there inflicted upon him, the said plaintiff,) for medicines, nursing, and medical attendance, to-wit, the sum of one thousand dollars, and other wrongs to the said plaintiff then and there did, against the peace and dignity of the people of this state, and to the damage of plaintiff of fifteen thousand dollars, and therefore he brings suit."

The plaintiff is 13 years of age. Defendant was informed that plaintiff had stolen some small articles from a notion stand in front of defendant's place of business, whereupon defendant, in company with his informant, started out in pursuit of plaintiff, and caught him about a block away, and the plaintiff's testimony tended to show that plaintiff was caught by the throat, thrown down, kneeled upon, beaten and bruised by defendant. Plaintiff testified that "after he [defendant] had hold of me, he brought me over to the policeman, and he told the policeman to arrest me; and these men that were there, [the by-standers,] they told him not to arrest me, but to arrest him." Objection was made to this testimony, but counsel for plaintiff continued: "Question. You said some other men spoke to the policeman. What other men? Do you remember? Answer. Yes, sir; there were some of them that gave me their names that they would be witnesses. They are in here now, I guess. They says to arrest him,-to arrest Mr. Freund. Q. Mr. Freund wanted you arrested? A. Yes, sir. Q. And those people were strangers to you, were they? A. Yes, sir. Q. And they told the policeman to arrest Mr. Freund? A. Yes, sir. Q. Why did they tell the policeman-what did he say-what reason did they give the policeman why he should arrest Mr. Freund? A. For hitting me." Another witness testified as follows: "It made me very angry to see a man of the age and the strength of that man to hold a little boy the way he did there; and quite a crowd collected there; and a policeman came up, and the boy stated his story as best he could in his excited manner to the policeman, and the policeman took the name, I think, of the little boy, perhaps, and let him go; and I, in company with two other gentlemen, took the little boy in charge. We went down to Judge Robinson, and we advised the little boy to utter a complaint for criminal assault. Question. I want to know which was the first overture,-the statement that was made to the policeman; whether it was by the outsiders,-the spectators there desiring to have Mr. Freund arrested, and then he claiming to the policeman that he ought to arrest the boy." Objection was then made, and exception taken, and counsel for plaintiff continued: "Question. Tell us about that as near as you may. Answer. I could not say as to which made the first overtures. I would not undertake to state as to that. Q. But the fact is that both these things were contemplated, were they not? A. Both of them; yes, sir. Q. Mr. Freund desired to have the boy arrested, and the people there desired to have Mr. Freund arrested? A. Yes, sir. Q. What did they want Mr. Freund arrested for? A. For...