Maisenbacker v. Soc'y Concordia of Danbury

• Decision Date: 04 January 1899
• Citation: 71 Conn. 369,42 A. 67
• Parties: MAISENBACKER v. SOCIETY CONCORDIA OF DANBURY.
• Court: Connecticut Supreme Court

42 A. 67

71 Conn. 369

MAISENBACKER

v. SOCIETY CONCORDIA OF DANBURY.

Supreme Court of Errors of Connecticut.

Jan. 4, 1899.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by Bertha M. Maisenbacker against the Society Concordia of Danbury for an assault and battery and for breach of contract From a judgment for plaintiff for $300, defendant appeals. Error, and new trial granted.

The complaint alleged: "(1) That the defendant was conducting and maintaining a ball and dance, for admission to which said hall, and the privileges of dancing therein, during said ball, the defendant charged an admission fee. (2) That on said date the plaintiff purchased a ticket of the defendant's agent at the door of said Armory, entitling her to admission to said Armory Hall, and the privilege of dancing therein, and immediately after such purchase plaintiff entered said ballroom of the defendant. (3) That at the time of the grievances hereinafter committed by the defendant there was a large concourse of people in said Armory Hall. (4) That while the plaintiff, on said date, was dancing with a gentleman in the large dance or ball room of the defendant, in the presence of said large number of people, the defendant, by its servants and agents, rudely and forcibly seized the plaintiff's person, and removed her from the floor of said ballroom, and removed and ordered her from all the adjacent rooms then and there occupied by the defendant and used by its patrons, and ejected her from all of the premises, and denied, deprived, and excluded the plaintiff from all of the privileges of said ball. (5) That the said agents and servants of the defendant, during the time of the commission of the assault and battery, addressed the plaintiff in loud, threatening, and insulting language, and that the assault was committed in a gross, wanton, and reckless manner, and with intent to, and they in fact did, greatly humiliate the plaintiff, and permanently wound her feelings, and then and there caused her physical pain and suffering. (6) That at the time of said grievances the plaintiff was by trade and was employed as a paper-box maker, and the plaintiff was receiving for her personal services in said trade nine dollars per week. (7) That by reason of said injuries the plaintiff became sick and nervous, and suffered physical pain, and great mental distress and anguish, and became unfitted to properly work at her said trade as a paper-box maker, and was obliged to, and did, abandon the same, and her health is permanently impaired." The plaintiff claimed $2,000 damages.

The first defense was substantially a denial of the allegations of the complaint. The second defense and the reply thereto were as follows: "Second defense: (1) Paragraph 1 of the complaint is admitted. (2) The tickets sold by the defendant for admission to said Armory Hall on said date were upon the following condition, viz. 'the committee reserves the right to exclude all objectionable parties.' (3) The plaintiff so conducted herself at said ball that she became objectionable to the managers thereof, who thereupon requested her to cease dancing, but did not deprive her of any other of the privileges of said ball. (4) Except as herein admitted, the allegations of the complaint are denied." "Reply of plaintiff to second defense: Paragraphs two and three of the second defense are denied."

The court made the following finding of facts: "The plaintiff offered evidence tending to prove, and claimed to have proved: That on the evening of January 27, 1898, the. defendant gave a public ball at a building hired by it for the purpose, in the town of Danbury. That the defendant sold to the plaintiff a ticket for the sum of twenty-five cents, which entitled the holder to admission to said ball, with the privilege of dancing on the ballroom floor when dancing was going on. That the plaintiff went to said ball in company with her sister, and the defendant admitted her to said ball on said ticket That while dancing was in progress upon the ballroom floor, and the plaintiff was engaged in dancing thereon with a gentleman, a floor manager of said ball, duly appointed by the defendant to have the regulation and charge of the dancing at said ball, in the presence of a large concourse of people, laid hands upon the plaintiff angrily and rudely, and pushed her, and compelled her to stop dancing; at the same time declaring that she and her companion were not proper persons to be dancing there, and ordered her to leave the floor. That she left the floor rather than to attempt by force, to persist in dancing; protesting that she was a fit person, and that they had no right to stop her dancing for any such reason. That the feelings of the plaintiff were greatly hurt by such battery committed upon her, and the attending circumstances. That the plaintiff was of a highly nervous organization, and that she was thrown into a highly nervous and excited state by said battery, and that in consequence she was unable to work at her trade of box maker up to the time of the trial, except for a period of two weeks and two days; and that she earned wages at the rate of nine dollars per week. The defendant offered evidence tending to prove, and claimed to have proved: That the plaintiff's sister, who accompanied her, purchased the admission tickets to the ball. That said floor manager did not lay hands upon or touch the plaintiff's person. That at the time she claimed she was assaulted she was dancing in an indecent manner, and that the floor manager simply notified her that she could not dance any longer; and that she thereupon protested loudly and noisily, as she left the floor. That the plaintiff continued to work at her usual occupation immediately after said evening for about two weeks, and that she was then discharged by her employer. That her condition of health was unchanged after said ball."

The defendant, among other things, requested the court to charge the jury "that the defendant corporation is not liable in exemplary damages for the malicious acts of its agents and servants, unless such acts were within the scope of the employment, and were previously authorized or ratified by the corporation," and "that there is no evidence before this jury of any such authorization or ratification." The court charged the jury: That there were two rights of action described in the complaint—one for an assault and battery, and the other for having been deprived of the privileges of the dancing hall for which the plaintiff had contracted and had paid 25 cents. That if the jury found the plaintiff's story to be true, "that when she was upon the floor the men [the floor managers], or one of them, came towards her, and called out to her, and at the same time advanced to her, and put his hand upon her shoulder rudely, insolently, or angrily, at the same time telling her that she could not dance there; that she was not a fit person to be there,—then the plaintiff has established her case as to this portion of the case which refers to this battery, and she is entitled to receive a verdict from your hands for damages." That if the jury found the facts as testified to by the defendant's witnesses, namely, that one of the floor managers, touching the gentleman with whom the plaintiff was dancing, upon the arm, without touching the plaintiff, said to them, "You can't dance here," then no assault and battery had been committed, and the verdict upon that feature of the case should be for the defendant. The court charged that, in fixing the amount of compensatory damages, the jury might consider the evidence showing the physical injury sustained, the plaintiff's mental suffering, and the loss of her earnings at her trade; and upon the subject of exemplary damages instructed the jury as follows: "Now, in addition to those damages which are compensatory, the law permits you, in case you find this battery to have been inflicted upon her wantonly, maliciously, or in wanton disregard of her rights, to add to that sum which you find will compensate her a sum as exemplary or punitive damages; and in this state you are allowed to award her as punitive damages such sum as you find, from your knowledge of the course of business in the courts of law in this state, to be her expenses in conducting this trial;" that the taxable costs which she would recover would by so much diminish the expenses of her trial, and should be considered by the jury in determining what the expenses of her trial were. The court charged the jury that the second defense—that is, that the managers had directed the plaintiff to stop dancing because her conduct was objectionable, etc.—applied only to the second cause of action described in the complaint, namely, a breach of contract by depriving her of the privileges for which she paid; and that if the jury found that no battery...