Ross v. Michael

• Decision Date: 06 July 1923
• Citation: 140 N.E. 292,246 Mass. 126
• Parties: ROSS v. MICHAEL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 126

140 N.E. 292

ROSS

v.MICHAEL (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

July 6, 1923.

Exceptions from Superior Court, Middlesex County; Frederick Lawton, Judge.

Two actions, by Mary J. Ross and by Charles Ross, against Arthur Michael, for assault and battery. Verdict for plaintiff in each action, and defendant brings exceptions. Exceptions sustained.

The assaults were claimed to have been committed while plaintiffs were in defendant's employment as domestic servants. Defendant answered by general denial and pleaded self-defense. The exceptions were to rulings on evidence, and to portions of the charge, and the refusal of requested rulings.

Richard J. Lane, of Boston, for plaintiffs.

Robert W. Nason and Thomas W. Proctor, both of Boston, for defendant.

CROSBY, J.

These are actions of tort, tried together, for assaults alleged to have been committed by the defendant.The plaintiffs are husband and wife, and at the time of the acts complained of were in the employ of the defendant-the husband as butler, the wife as cook. A verdict was rendered for the plaintiff in each case.

The defendant excepted to the admission of certain evidence, to the refusal of the trial judge to give certain rulings requested, and to portions of the charge.

There was evidence offered by the plaintiffs tending to show that at about 10 o'clock in the evening of December 8, 1918, the male plaintiff and the defendant had some words respecting the condition of a lamp on a table beside the defendant in his library; that the former said, ‘You seem to be nagging a great deal, Mr. Michael, lately. What seems to be the matter;’ that the defendant replied, ‘Get out; that is all I want of you; get right out;’ that this plaintiff said, ‘Now, Mr. Michael, you have been nagging to Mary lately, and she has spoken to me about it, and I wish to say, if our services don't suit you in any way, you don't need to get angry about it;’ that the defendant's face became flushed, he shouted to the plaintiff to go, and reached over and grabbed an antique dagger with a long blade, and followed him out of the library, through the hall, and into the dining room; that the defendant then ran upstairs to his bedroom, and obtained a loaded revolver, and while he was coming down the stairway the female plaintiff came from the kitchen and said to him, ‘What is the matter, Mr. Michael?’ that he said, ‘Mary, get right out of my house, or I will shoot you dead;’ that ‘he stood on the stairway with the revolver pointing right between her eyes'; that ‘he repeated that twice about shooting her dead’; that later both plaintiffs retired to the rear of the house; that the defendant telephoned for a policeman, who arrived some time afterwards, and the defendant then in the presence of the officer told the male plaintiff that he and his wife must leave the house immediately.

We will consider only the exceptions which have been argued; the others are treated as waived.

[1][2][3][4] 1. The husband was asked on direct examination to ‘tell the jury how [he] felt humiliated by this assault.’His reply was:

‘Well, I felt that he disgraced me, by bringing in the police, and turning us out in the middle of the night, and ruined my 25 years of good references, you might say.’

The defendant asked to have the answer stricken out, and excepted to the refusal of the court to do so.

The plaintiff was entitled to recover as an element of damages for the humiliation, indignity, and injury to his feelings. Smith v. Holcomb, 99 Mass. 552;Morgan v. Curley, 142 Mass. 107, 7 N. E. 726;Burns v. Jones, 211 Mass. 475, 98 N. E. 29. But his damages were limited to the proximate results of the assault. The policeman was called after the alleged assault was over, the defendant violated no legal duty which he owed to either of the plaintiffs by such action, and it properly could not be considered by the jury in estimating damages. He had a right to order the plaintiffs to leave his house and it was their duty to comply with the order; what his motive was in so doing was wholly immaterial. Bruce v. Priest, 5 Allen, 100. We are of opinion that the further answer of the plaintiff that he was humiliated on account of the loss of 25 years of ‘good references' was also incompetent; it had no bearing whatever upon the question of damages. We cannot say that its admission was not prejudicial to the rights of the defendant; accordingly, the exception to the refusal to strike out the answer must be sustained. Brown v. Cummings, 7 Allen, 507;Miller v. Curtis, 158 Mass. 127, 132, 32 N. E. 1039,35 Am. St. Rep. 469.

[5] 2. The question put to the witness Butler by the plaintiff, ‘did you say anything about Mrs. Ross staying in your premises that night?’ was not answered. The further question, ‘Did you have a talk with anybody about that?’ was answered in the affirmative. The exception to this question cannot be sustained. It does not appear what the conversation was, or whom it was...