269 Mass. 261 | Mass. | 1929
These are two actions of tort, each in two counts. The plaintiff in the second action, who is the husband of the plaintiff in the first action, seeks to recover for consequential damages. The cases were heard together as one case by a judge of the District Court of Springfield. The plaintiff in the first action will herein be referred to as the plaintiff. At the close of the trial and before final arguments, the plaintiff made certain requests for rulings as to count one of the declaration. The judge made certain findings of fact and severally denied each request for rulings of law because contrary to the facts found by the court. The judge found for the defendant on the first count of the plaintiff’s declaration, and at the request of the plaintiff made report to the Appellate Division. This report contains all the evidence material to the questions reported. The cases are before this court on the appeal of the plaintiff from the order “report dismissed” of the Appellate Division.
The first count of the plaintiff’s declaration alleges that “while she was walking along East Street, in Ludlow, the defendant, contriving to injure the plaintiff and to compel her against her will to do as he wished her to do, stopped her and under the pretence that he was to take her to her home in his automobile induced her to ride with him in his auto
The facts found by the judge and reported are as follows: “About 6.30 o’clock in the evening of April 21, 1928, the plaintiff was walking northerly on the left hand side of East Street in Ludlow, in said county, toward the corner of Lake-view Avenue, which was a little over a street block away from her and on which she lived, at a considerable distance from East Street. The defendant, driving a truck northerly on the opposite side of East Street, drove the truck to the left hand side of the street, near the plaintiff, asked the plaintiff if her husband was home, and on receiving an affirmative answer, said, 'Come on, sit down, I’ll take you home.’ After demurring slightly, the plaintiff got in and sat on the driver’s seat near defendant in the cab of the truck and defendant drove along. They had known each other slightly for quite a good many years, and defendant had at least once been to plaintiff’s home to see plaintiff’s husband on a business matter. Before getting to Lakeview Avenue, the plaintiff notified defendant that that was the corner to turn; but defendant continued on past the corner. He said to plaintiff, 'We’ll go for a ride.’ Plaintiff said, 'I don’t want to ride; I’ve got a husband and kids.’ Defendant replied, 'You can change them.’ Plaintiff replied, 'If you want a change, take a young lady, not me.’ Defendant replied, 'I want you.’ Defendant twice put the fingers of his right
The first case evidently was heard and decided by the judge solely on the theory that the cause of action stated in count one and supported by the facts found was an action for negligence. Count one of the declaration has a double aspect, (1) a charge of wilful and wanton misconduct; and (2) an informal charge of false imprisonment, with an allegation of special damages predicated upon the established fact that the defendant, without legal justification, absolutely restrained the liberty of the plaintiff in every direction during the time the automobile was passing from Lakeview Avenue to Kirkland Street. Commonwealth v. Nickerson, 5 Allen, 518, 525, 526. Lowrie v. Castle, 225 Mass. 37, 48, 49. Jacques v. Childs Dining Hall Co. 244 Mass. 438. Bird v. Jones, 7 Q. B. 742. Robinson v. Balmain New Ferry Co. Ltd. [1910] A. C. 295. In such a case the facts, if proved, entitle the plaintiff to at least nominal damages. Bird v. Jones, supra. The specific allegations of indecent proposals and of assaults and batteries while the plaintiff was under the unlawful restraint of the defendant were statements of concomitant facts which were not required to be proved to maintain the action, but if proved might be considered in aggravation of damages for the wrongful imprisonment. ' The negligence of the plaintiff, if such there were, in getting out of the
It cannot be said as matter of law, in view of the offensive character of the restraint, that the act of the plaintiff in stepping from the defendant’s automobile to escape from restraint and from further indecencies of conduct and speech by the defendant, was not the proximate consequence of the false imprisonment. Lane v. Atlantic Works, 111 Mass. 136. Hill v. Winsor, 118 Mass. 251, 259. On the facts found the request, that on all the evidence the findings and judgment of the court should be for the plaintiff, should have been given. It results that the order “report dismissed” of the Appellate Division must be reversed, and the cases remanded for further hearing before the judge of the District Court on the first count, on the question of damages only.
So ordered.