| N.D. | Dec 31, 1919
Lead Opinion
The plaintiff recovered a verdict of $2,500 for indecent assault; the defendant has appealed from the judgment rendered and the order of the trial court denying a new trial. The defendant is a bachelor, fifty-nine years of age, engaged in farming; he hired the plaintiff as his housekeeper; the plaintiff was a married woman with two little children, having left her husband for his failure to support her. The plaintiff was needy and so worked out in an endeavor to support herself and her two little children. The agreed compensation for this work was $5 per week. She remained in the employ of the defendant about two weeks. There is evidence in the record that the defendant, at the beginning of the employment, attempted to take indecent liberties with the plaintiff; that his attempts in this direction continued at intermittent periods, finally culminating in a bolder attempt to have sexual intercourse with the plaintiff. All of these attempts the plaintiff resisted. She was compelled to, and did, leave his employ. The main contention of the defendant is that the damages awarded are so excessive as to show the influence of passion and prejudice of the jury. The trial court, in a memorandum opinion denying a new trial, comments upon the record testimony, observing particularly the ladylike demeanor of the plaintiff and the testimony which discloses her effort as a good, virtuous woman to perform hard work in order to maintain herself and her two little children, and, in contrast, the acts of the defendant and the testimony in the record to the effect that he claimed such privileges with housekeepers that might work for him. We agree that the trial court did not err in denying a new trial. The fact that the plaintiff, shamed and humiliated, wept while on the stand as a witness, does not warrant the conclusion of this court that the jury were influenced thereby through passion or prejudice. The question of damages was properly a question of fact for the jury. It was eminently the duty of this defendant to protect the plaintiff as a woman and as a mother in every manner. The assault, as found by the jury, was aggravated, and
Dissenting Opinion
(dissenting). This is a personal-injury suit, in which defendant appeals from a verdict and judgment for $2,500, and interest from March, 1918. The complaint avers that in March, 1918, at his farm home in Barnes county, defendant feloniously assaulted the plaintiff with intent to ravish her, to her damage, $5,000. Now an assault is an unlawful attempt, with force and violence, to do a corporal hurt to another. Comp. Laws, § 9545. Three is not in the record a particle of evidence that defendant ever assaulted the plaintiff or ever did her a corporal hurt or injury. She is a grass widow of twenty-eight years, with a daughter eight years and a son five or six years. At the age of seventeen she wedded a worthless fellow, with whom she has roamed about the country and has lived in three or four places in each of three different states, — in South Dakota, in North Dakota, and in Montana. Like gypsies she and her husband have been moving from place to place and post to pillar, leaving their characters behind them and at times living on the county. Her mode of life has been such that several times she has had to go to the hospitals.
On March 17 or 18, 1918, she was taken by a casual acquaintance — ■ a young man whom she met on the train — to the home of defendant. They got there and had supper about 8 p. m. She at once found employment as housekeeper at $5 a week, with bed and board for herself and children. After supper she sat in a chair, rocking her child to sleep, and then she says he pinched her leg and said, “You have a nice leg.” Then, as she says, “In three or four days he came to my bed at night, touched my arm, and said he came to sleep with me. I said, ‘Get out of here,’ and he did. Then for several days he was all right, helped me with the washing, carried the water and helped with the housework.” Then on Sunday morning, March 31st, as she says, he pulled her onto his lap, pulled up her dress and said he was in the habit of doing business with his housekeepers, and, as she broke away from him, he said: “Damn you, you are tired from your operation, and I will get you yet.”
Now, of course, the plaintiff had the burden of proof and her testimony is flatly contradicted by the defendant. It is in no way corroborated and it is highly improbable. She was entirely safe in testifying to anything that she pleased in regard to the sayings of the defendant, and she was under a great temptation to do all she could to recover a large verdict. Her shrewd counsel was likewise .under some temptation to aid her and to receive half of the judgment. The result of it all was a verdict for $2,500, and interest, a sum equal to the earnings of the fair lady for ten years,- — and she was not injured one red cent. She had not been assaulted; no words, however rude, do constitute an assault or a cause of action.
Now in the scale of probability and common knowledge, let us weigh the testimony: Defendant is a bachelor of three score years. By hard work he has accumulated a nice property. As a man grows in years and in property he grows more and more prudent and conservative. He learns to beware of widows. His youthful passions no longer burn; there is a limit to his store of energy. He does not at first sight edge up to a widow, give her a little pinch and say: You have a nice leg. He does not, without courtship, run into her bedroom and offer to sleep with her. He does not, after an acquaintance of a few days, pull her onto his lap and say: Damn you, I’ll get you yet. Such testimony is not in anyway credible; it is plainly false and preposterous.
But there is the verdict, and how shall we account for it ? The first
(2) Another point or reason is that in cases of this kind jurors and judges are apt to have a bias and a desire to plume themselves and their righteousness by an expression of horror at a mere accusation of wrong. In the words of the Pharisees we are still disposed to say: “God, I thank thee that I am not as other men are, extortioners and adulterers and even as this publican.” Thus it was that when Judah — a judge of Israel — was told that Tamer, his daughter-in-law, had played the harlot, he said, “Bring her forth and let her be burned.” In that way he proclaimed his own righteousness and his horror of wrong; but when Tamer was brought forth “she had the goods on him;” she had his pledge, .his signet, his bracelets, and his staff. He had to own up and confess that he was the guilty party, and that she was more righteous than himself.
(S) Plainly defendant did not have a fair trial. Even the pious judge fell under the spell of the tearful enchantress. He argued her case to the jury, assuming that her words were as true as gospel, misstated the law, and in his memoranda went out of the record to denounce the defendant and to charge against him gross and libelous mat ter. In his charge to the jury the court repeats, and reiterates, and gives undue emphasis to, the false complaint, and assumes that there is evidence of an assault on the plaintiff, an attempt to ravish her, and of injury and humiliation by reason of the same. It is said: “If you find from the evidence that defendant made an indecent assault on the plaintiff in the manner testified to by her, then the plaintiff is entitled to a verdict.” Plainly that was an error because the plaintiff had not testified to any assault. Then it was said: “The law affords protection from indecent advances, and requires anyone violating the law in that respect to respond in damages for any detriment suffered
Judgment should be reversed and action dismissed.