Geary v. Cain , 69 Utah 340 ( 1927 )

I dissent.

Looking at the case in the light most favorable to the plaintiff, as I am required to do, and though it be assumed that there is sufficient evidence to support a verdict in favor of the plaintiff for some damages, nevertheless I cannot yield to a holding that there is sufficient evidence to support the amount of damages as rendered by the jury nor as diminished by the trial court. Because a record viewed in a light most favorable to a plaintiff may entitle him to some damages, it does not follow that the amount of a verdict as rendered is supported by sufficient evidence. It is from such considerations that I view the case. In doing so, I shall consider only such facts concerning which there is no conflict in the evidence, and, where there is a conflict, I shall consider only the evidence adduced on behalf of the plaintiff.

She was a married woman, 48 years of age, living with her husband. She was married to him in 1920. Some time prior to April, 1923, the exact time is not shown, she or she and her husband entered into a contract to purchase the Kelvin Apartments for the sum of $11,000, on monthly payments of $135 each, subject to a mortgage of $17,500. She had no income other than as derived from rents of the apartments. Her husband had no income and no employment except about the apartments. In April, 1923, they were in default in making payments on the purchase price of the property, and by November 15, 1923, such defaults, taxes, and assessments due and unpaid amounted to about $2,000, about $10,000 yet to be paid on the purchase price, and the $17,500 mortgage still outstanding. The first time the Gearys met Cain was in October, 1923, when they borrowed $200 from him and gave him, as plaintiff testified, her contract of purchase for security. On November 15, 1923, because of defaults of the payments, a forfeiture of the contract was declared and a contract thereupon entered into between Cain and the owner of the property to purchase it, at which time the possession of the property was turned over to Cain by the Gearys and with their consent the tenants notified to pay the rent to him. At the same time the Gearys and Cain entered into an agreement whereby they agreed to pay him $40 a month for one of the apartments occupied by them, $25 of which was to be paid in labor in caring for the premises, and $15 in cash until further notice. At that time an action was pending between the Gearys and others, in which Cain in no manner was concerned, wherein such others obtained a money judgment against the Gearys or Mrs. Geary and on execution sold all right, title, and interest held by the Gearys or Mrs. Geary in and to the apartments. In proceedings had in such case, the plaintiff testified that she no longer had any interest in the premises and was only a caretaker of them for Cain. Later she, in the federal court, was adjudged a voluntary bankrupt. The Gearys, under their agreement of November 15, 1923, with Cain, continued as his tenants occupying one of the apartments, cared for the apartments, and collected rents from other tenants and turned them over to Cain. On October 17, 1924, Cain, who up to that time had paid on the property something over $2,500, including back taxes, special assessments, and repairs, etc., offered to turn over to the Gearys his contract to purchase on payment to him of $2,500 within 30 days. The Gearys were unable to pay such sum or any sum. Later, and on December 5, 1924, Cain in writing again offered to give the Gearys a quitclaim of all his interests in the premises on payment to him in 30 days of the sum of $1,500; but the Gearys were unable to pay even such sum. In April, 1925, Cain commenced an action against the Gearys, and in June of the same year obtained a judgment against them for $255 for unpaid rents of the apartment occupied by them and for restitution of the premises. In that action it was alleged by the Gearys that Cain had purchased the apartments and held title thereto for the use and benefit of the Gearys, and that he account to them, but the court in such action held against the Gearys, and held that they had forfeited and surrendered whatever right, title, or interest they had in or to the premises, and that they no longer had any interest therein. Then in July, 1925, the plaintiff commenced this action against the defendant for alleged assaults committed on her by him, one on July 14, 1924, one August 10, 1924, one August 16, 1924, and the last on December 5, 1924. All through the course of her testimony in this case, the plaintiff, notwithstanding the prior adjudications against her and in direct conflict with her written agreement of November 15, 1923, admittedly entered into by her and her husband, forfeiting all their right in and to their contract of purchase and in and to the premises, and surrendering possession of them to the defendant, and of the undisputed relation between them of landlord and tenant as to the apartment occupied by them, berated the defendant for violating, as she claimed, a pretended agreement had with her to protect her interest in the property, to purchase and acquire it, not with money of the Gearys or anything of value furnished by them or either of them, but with the defendant's own money, and to hold the title for her use and benefit; and, because of his failure and deception in such respect, as she testified, she lost all that she had put in the property, and from time to time had made numerous demands for a settlement with Cain in relation to such matters, but that he put her off, and finally refused to do anything, and, as she testified, "set her out in the street."

In addition to the matters set forth in the prevailing opinion as to the first alleged assault on July 14, 1924, the plaintiff further testified that, when she told the defendant she "would scream," she further testified that she at that time heard some one coming up the back way, she thought a man with paint buckets, and that there was a noise, and "I said, `let loose or I'll scream'"; that her husband had just returned and was up in their apartment (she and Cain being in an apartment on the floor below), and when she, as she testified, broke loose from the defandant and ran up to her apartment where her husband was, who, as she testified, had just returned "from town or somewhere; he had just been out a little while and he had come back, and I took a hammer to Mr. Geary — they called for a hammer — and then I went back." She said nothing to her husband as to what had happened, made no complaint whatever to him, took the hammer to him, and then immediately went back to where Cain was, who, as she testified, had just a few moments before assaulted her in manner as detailed in the prevailing opinion. When asked why she had not screamed or called for help or complained to her husband, she but answered that she was fearful her husband would do violence to Cain; that Cain had all the papers; that she "wasn't a blabberer"; and that Cain threatened to take the apartments away from her and dispossess her though it indisputably was shown by her own instrument in writing, admittedly signed by her, that she, eight or nine months before, had forfeited whatever right, title, or interest she ever had in or to the apartments and had surrendered possession thereof to Cain, and, too, whatever right, title, or interest she may have had in or to the apartments had been sold on execution sale in the case referred to.

I come now to the second alleged assault of August 10, 1924. On that occasion she testified she was indisposed, lying on her couch in her apartment, when Cain brought a couple, a man and wife, to look at an apartment and who wanted an unfurnished apartment; that plaintiff told Cain there was no unfurnished apartment and no place to store furniture; that Cain and Geary took the couple to an apartment across the hall from the apartment where plaintiff was lying, and, while Geary was showing the couple the apartment, Cain, with the doors of both apartments open, stepped up to the couch where the plaintiff was and stooped down, and "patted" her head and said to her, "You are not well again, little baby"; that she replied she would be all right in a day or two, that she was not feeling very well that day; that Cain thereupon put his hands on her breasts and "squeezed" her, and said, "You are going to do as I want you to, are you not?" and that she replied, "I have tried to do what is right, I have tried to please you," and that Cain said, "You know what I want; you will do it, won't you? You will come through; you will be mine. You please me, and I will do anything for you; you can stay here as long as you want; it will be your home, little baby; you won't have to worry and work like you do;" and that she replied, "Mr. Cain, put those people out down stairs; there will be people here tomorrow to take the place that is furnished; put the old couple down stairs out"; and that Cain said, "Anything you say goes," and at that left. Again she testified that she made no outcry or complaint, or that she even made any active resistance or objection.

The next assault testified to by her was October 16, 1924. On that occasion she testified Cain came to her apartment and asked where Geary was. She told him he was down town but would be back before long. Cain then said that he did not care for Geary, but "you are all right, dear little baby; what are you worrying so for? Why do you worry?" that she replied, "On account I want a settlement; I want this contract to my home; I can't have peace until I know my home is safe," and at that Cain put his arms around her and said, "Are you ever going to do what I want you to? You won't need to worry like that if you do what I want you to," and then he "squezzed me and shook me"; and she said, "Mr. Cain, you must be honorable; let loose and go; some one is coming; Geary is coming and I'll scream." She further testified: That Geary was down the street and saw Cain run out of the house. That she didn't dare to tell Geary anything; that he would have killed Cain. That she was "in a heap on the floor when Geary arrived. I was crying, sobbing, and wringing my hands. He picked me up, and said `What is the matter?' and I said, `Mr. Cain has been here'." That Geary laid her on the bed. That she was not exactly unconscious "but went helpless. I knew what I was doing, but couldn't help myself. Every time I would get up I would fall over. Couldn't walk. My husband did whatever things to revive me, but from that time on every time I would get up and try to walk, especially when I tried to get up, I would go over; I would fall over." That she couldn't walk from her bedroom to the other room, and that the next morning when she tried to dress herself she fell to the floor. That her husband got the breakfast "and after that every time I tried to get up or walk or sit up I would go over with pain. It seemed like I was crushed. When I tried to eat, I couldn't choke it down. It hurt me here, through my back, and I was in bed two or three days and gradually got worse and called a doctor," who, as she said, examined her "body thoroughly all over and prescribed a tonic and some medicine," but that she made no complaint to the doctor as to any assault having been made on her nor did she attribute her condition to any such cause. Most remarkable, natural, and probable symptoms and consequences flowing from the acts testified to, that the defendant called her his "little baby," told her not to worry, put his arms around her, told her if she would do what he wanted she need not worry, squeezed her, and, when she told him, "Geary is coming, go, I'll scream," Cain ran out of the house; and when her husband arrived and found her, as she testified, "in a heap on the floor, crying, sobbing, and wringing her hands" and in a helpless condition, and, on being asked what was the matter, the only reply made by her was, "Cain has been here;" yet from thence on she testified, she gradually grew worse, procured a nurse November 15, until December 2, 1924, when, as she testified, she had partially recovered, but was still confined to her bed.

I now come to the last scene of the drama, December 5, 1924, when plaintiff testified the last assault was made on her, and for which damages are claimed. Up to this time there was no witness who saw Cain, on any of his numerous visits to the apartments, every few days, either to receive rents collected by Gearys or on other matters concerning the premises, do or say anything out of the way. No complaint had been made by her to any one except as she testified that some time in November she, for the first time, told her husband and a friend, when both were present, of the prior assaults made on her by Cain and what he had said and done to her. Her friend saw a deputy county attorney, not any of the attorneys appearing for plaintiff in this case, who visited the plaintiff at her apartment. A deputy sheriff and his wife resided in one of the apartments. The plaintiff testified she had intended going to Brigham City with her brother for a rest, but before she went she wanted a settlement with Cain, an agreement with him just how much he would take for his interest in the apartments; that he had many times promised to give her an agreement, but had always held it off, and that she was anxious to know what he would take for his equity and expenses and money he had paid out on the place "that I might have the contract back again in my name"; that she wanted Cain to give her such a writing before she went away and also to pay him some rent which she had collected.

So on the evening of December 5, 1924, at about 6 o'clock, the plaintiff got the wife of the deputy to call up Cain on the telephone to come to plaintiff's apartment. Cain responded to the message and came up; but before he came, at plaintiff's instance, the deputy sheriff with a gun and two other able-bodied men were secreted in the bathroom leading from the room where plaintiff was, but with the door of the bathroom sufficiently ajar so that those in the bathroom could see and hear all that took place when Cain arrived. The wife of one of the men was in the bedroom also adjoining the room where the plaintiff was. Plaintiff testified the men were secreted in the bathroom for her protection and the woman in the bedroom because she was tired and not feeling well; that Geary helped the plaintiff, she said she could not walk alone, from her bedroom on the couch where she reclined awaiting Cain's coming, and that her husband, knowing that Cain was coming and that the men were secreted in the bathroom then left the apartment, and, as plaintiff testified, went up town on business. At about 7 o'clock Cain arrived. The plaintiff, as she testified, opened the door and ushered him in. He took off his coat and hat. Her version of the affair from thence on is: That she told Cain she expected to go away for a few months, and to ease her mind she desired a settlement "on the business affairs of her home." That he said that was unnecessary; "Little baby, all will be well. When are you going to get rid of that silly old thing? Get rid of him. I'll take care of you. You don't need to worry like this. Lie down." And so she lay down on the couch, "as I was very weak; couldn't sit up long at a time"; and that Cain said, "You are weak, don't worry so much; I'll take care of you, you little baby;" and that she, in reply thereto, said, "I want you to give me a contract; I want you to write out something that my mind can be clear, that my mind can be at rest and quiet," and that then he "petted me, squeezed my legs, and held me on the couch. I was dressed all but a dress; I had a kimona. I wanted something in writing, so he wrote out the papers that he would take $1,500 for his right and title. There was a great deal of talking. He kept petting me, trying to soothe me in a comforting way, coaxed me not to worry, told me to go away and rest, get rid of Geary, `trust in me,' and he put his hand down my leg, and, by the way, I had an ice pick in my hand. I had it in my stocking but when I raised off the couch to get the piece of paper for Cain it dropped out of my stocking, and I picked it up, lay down again, gave him the tablet to write on, and put the pick by my side of the pillow behind me and he spied the end of it, and he wrote out his paper, and then just laid over around me like and says, `What have you there? You have a pocket knife;' and asked to see it, and I told him he didn't want to see it, and then he reached and took it and said, `Well, what are you going to do with that?' and I said `I am kind of nervous when Geary is away. I am nervous and fretful, and I have that for protection.' Then he pulled the shield off and said, `You wouldn't stick any one with that;' and I said, `I am not sure about that if I had cause to;' and he said, `Oh, don't use a thing like that, get a gun;' and he laughed, held the pick a while, and then put his arms around me and said, `You wouldn't do anything like that;' and I said, `I might if I had occasion to.' Then he laid the pick down on the couch and put his cap on and coat ready to go. I sat up by the table, showed him this paper, and he put his arm around me, and I sat on the couch, and he put his arm around me and drew me up close to him and said, `I am glad to see you up; go and have a good time;' and then he squeezed and hugged me. This all occurred over a period of about a half an hour," and then Cain left. She further testified: That she did not call to the men in the bathroom for help, as on that occasion "I didn't need protection. I didn't call any one. The officers were there, saw no violence or abuse as on previous occasions. I didn't call for help. Mr. Cain was very mild that night. The deputy sheriff didn't arrest Cain because there was nothing that night that required arrest; nothing like what occurred on July 14th and on October 16th."

The deputy was called by the plaintiff, and, as to what took place on the evening of December 5, testified: That he and two other men were in the bathroom with the door slightly ajar and watched Cain all the time he was there, and heard and saw all that took place. That Cain rang the bell; Mrs. Geary opened the door; Cain came in, asked how she was, and said something that she wanted to see him. That she replied she did, and that she wanted a settlement and wanted a contract as to what he would take for the apartments. Cain told her to sit down, that she need not worry about that, that will be taken care of. That Mrs. Geary said she was going away for a few days and wanted her mind put at rest, and that she wanted Cain to give her a writing as to what the settlement would be. She told Cain she was in a weak condition, and lay down on the couch, and that he moved his chair up closer and told her she was worrying too much about this affair, that she need not worry about it at all, that he would take care of her and to get rid of that "old fool, and it will be all right," and at that he laid his hand on her and upon her breasts and legs. She removed it, and Cain said, "You don't need to worry, get rid of that old fool," and she said, "You are a married man; you should not do these things; and then Mrs. Geary reached down on the floor and slipped something under the pillow. Cain said something about writing out the settlement. Mrs. Geary got a piece of paper for him, and he wrote out something and handed it to her and got up and went to the door. Then he looked down on the couch and said, "What is this?" and she pulled out the ice pick and said, "Well, I am afraid of you, Mr. Cain;" and he said, "You don't want to use a thing like this; if you are going to kill a man, get a gun;" and either handed the pick back to Mrs. Geary or laid it on the table and left. The deputy further testified that he saw the plaintiff a number of times before this occasion; that she appeared to be in a weak condition; that she told him a number of things which he thought were "rather funny," and that, when she referred to the trial of her case in court, "I thought she was losing her mind, I didn't think she was right"; that he did not arrest Cain because he had done nothing to justify an arrest, and that he "thought possibly it might have been a frame-up," and that he wanted to be as careful as he could and "still be right," but "didn't think it was a frame-up." The testimony of one of the other men in the bathroom who also called by plaintiff, was, as to what took place between Cain and Mrs. Geary on that occasion, substantially as that given by the deputy. The other man in the bathroom was not called as a witness.

Such was the whole of her evidence as to the alleged assault on December 5th. The evidence respecting it carries its own brand. It shows either the conduct of a dement, fretting and worrying over financial matters and losses, or a "frame-up" in an attempt to procure evidence of an unworthy cause. I think the performance as described by plaintiff and her witnesses may not be otherwise characterized. It was not shown that any assault was committed that night, so far as testified to by plaintiff herself, for, according to her testimony, she neither resisted, remonstrated, nor objected, but seemingly acquiesced in what Cain on that occasion said and did, and testified that "Cain was very mild that night" and "petted and tried to soothe and comfort" her; and, according to the testimony of the deputy, Cain but laid his hand on her and on her breasts and legs, which she removed, saying he was married man and should not do those things — naughty boy — but gave no testimony that the plaintiff otherwise objected or resisted, and at most what Cain then did, if not a procured or an induced, was but a bare technical assault, or no assault, because acquiesced in if not encouraged by her.

The plaintiff further testified that, covering the period in which the alleged assaults were made and thereafter until some time in March, 1925, Cain, except a few weeks when he was out of town, frequently, every few days, called at the apartments and conversed and had dealings with the Gearys in receiving the rents and other matters concerning the apartments, and that the relation between them was friendly, and that at no time and on no occasion, prior to the commencement of this action, had she in his presence accused him of or mentioned any assault made upon her or that he on any occasion in any particular had mistreated her.

She further testified that in 1923, shortly after she moved in the premises and before she had known Cain, she had a miscarriage and was ill for three or four weeks; that in December, 1923, she suffered from hemmorrhoids and was operated on at a hospital; that some years before she suffered from neuritis and was in a hospital for three months; and that she also suffered from rheumatism.

I think it clearly shown that the plaintiff, prior to her meeting Cain, was frail and sickly, and that her claimed neuresthenic condition was largely, if not wholly, due to worry and fretting over financial losses and losing the apartments, due solely to her inability to keep up her contract in the first instance resulting in a forfeiture of it, a sale on execution of whatever right, title, and interest she had in and to the apartments, and her total inability to pay Cain anything for moneys himself put in the apartments, though willing as he was, yet under no obligation whatever, to turn over to her all right he had in the apartments, if she but partially reimbursed him.

The circumstances described by her under which the first assault was committed, that she broke loose from the defendant's embraces and ran up stairs where her husband was, taking a hammer to him, saying nothing to him or to any one as to what had occurred, immediately leaving her apartment and going back where Cain was, thereafter remaining friendly with him, stating to him that her worries and fretfulness were due to the loss of what she called her home and of her desire to get some writing from Cain to protect or secure her rights therein, not making any claim that her condition was due to any assault or similar mistreatment, and manifesting no displeasure of him until the threatened proceedings to evict her, render her testimony as to such assault, especially as to the seriousness of it, improbable if not unbelievable. So too as to the second assault, when her husband and the couple to whom he was showing an apartment were just across the hall a few feet away, with both doors open, when as she said the defendant patted her head, squeezed her breasts, called her his little baby, and said that she was going to do what he wanted, and that she, without even a remonstrance, but replied that she had tried to do what was right and to please him, and told him how it could be arranged to accommodate the couple seeking an apartment. It is inconceivable how any assault of a serious nature, anything but a technical assault, may be deduced from testimony of such character. Strange it is that the plaintiff should so suddenly and so completely be prostrated from the third assault, when it was no more serious than the second, and, as described by her, less serious than the first. Strange too is it that, if it be true that because of the assault the plaintiff fell "in a heap," crying, sobbing, wringing her hands, was rendered helpless, could not walk, and when her husband arrived as the defendant ran out of the house and asked her what was the matter she but replied, "Cain has been here"; but that nothing further was asked by him and nothing further told him, though the next day and for weeks thereafter she, as she testified, fell over whenever she got up and attempted to walk, and was confined to her bed, and that, when the doctor finally was called, she in no particular then attributed her condition to any such cause as now claimed. And more strange too is it how such a condition as described by her could as any sort of reasonable, natural, or probable consequence be attributed to the acts constituting the assault as described; the defendant calling her his little baby, telling her she need not worry if she did what he wanted, putting his arms around her, and squeezing her and running from the house on her telling him to let loose and go, that her husband was coming, and that she would scream. On that occasion she testified that when Cain came, on entering her apartment and after greeting her, he asked her, "What are you worrying so for? Why do you worry?" she replied, not because of any assaults, but because she wanted a settlement, "a contract to my home," and that she could have no peace until she knew her home was safe. And, if it be true that as Cain left she was prostrated, crying and sobbing, it is more likely that such mental state was due to Cain's then refusal or failure to comply with her request.

Little more need be said as to the circumstances of the claimed last assault. If it be true that plaintiff then was in such condition as to be unable to walk and had to be assisted from one room to another, it is inconceivable that any present assault of any serious nature was then attempted. Neither plaintiff's testimony nor that of her witnesses shows that any assault was then made, unless a bare technical, if not an induced, assault. Two views may be taken as to the laid plan or scheme inviting the defendant on that occasion to plaintiff's apartment. One to invite or induce him to take liberties with the plaintiff or at least to create an opportunity for him to do so in the hope that, with the bathroom full of witnesses, he would do so, and the more violent or aggravated the liberties might be, the better the desired object of the invitation would be accomplished. The other view is that the plaintiff desired to arrange an interview with the defendant to obtain admissions or promises from him in the hearing of others with respect to some sort of an acknowledgment on his part as to her rights in and to the apartments. Certain it is that the deputy sheriff and two other able-bodied men were not secreted in the bathroom for plaintiff's protection, and the wife of one of the men in the bedroom because she was tired and not feeling well, when just below she had an apartment of her own, and that the claimed presence of the secreted witnesses for protection was but a pretense so flagrant as to cast doubt and suspicion on the bona fides of the whole transaction. If plaintiff, before she went away as she said she contemplated doing, but desired to pay Cain some rent which she had collected and was fearful that he might assault her — when she was not even able to walk or sit up long at a time — surely her husband could have taken the rent to Cain or remained at the apartment when Cain came, or any one of the men secreted in the bathroom, or even the woman in the bedroom, could have been present in plaintiff's room when Cain came. When he arrived and inquired of plaintiff the purpose of the visit, she told him she expected to go away a few months "and desired a settlement so that my mind would be at ease on the business affairs of my home," and before Cain left he gave her a writing quitclaiming to her all his right, title, and interest in and to the apartments on payment to him in 30 days of $1,500.

Neither the plaintiff nor her husband having any source of income whatever, it is inconceivable how they, though they in some manner had been able to raise the $1,500, could have met the unpaid purchase price of the property then amounting to nearly $10,000 and take care of the $17,500 outstanding mortgage, unless Cain, for plaintiff's use and benefit, himself with his own money took care of and discharged such obligations and without reimbursement turned the property over to her, which, of course, he refused to do. And, when Cain finally ousted the Gearys from the apartment occupied by them for nonpayment of rent, this action, in about a month thereafter, was commenced. And there is the peak of this controversy.

In giving her testimony, answers in many particulars made by her to questions propounded to her were irresponsive and evasive and sometimes were mere addresses or arguments to the jury. So, too, in instances, her testimony on material matters was in direct conflict with her deposition taken before the trial. And, as already observed, the assaults as described by her were not of such serious consequences as to justify any such verdict as rendered by the jury nor as diminished by the court. That the verdict as rendered was so grossly disproportionate to all reasonable and probable consequences attributable to the assaults as described by the plaintiff and the circumstances under which they were committed as to indicate that the verdict was the result of passion and prejudice, and not from a fair or impartial consideration of the law and the evidence, may not well be doubted. The trial court evidently was of that opinion when it ordered a new trial unless the plaintiff remitted $10,000 from the verdict. I do not contend that the trial court in no case, where he is of opinion that the verdict was the result of passion or prejudice, may not require a remission and if not made grant a new trial. Under holdings of this court I concede that may be done in some cases, and I too readily concede that to a large extent such matters rest within the sound discretion of the trial court. Nevertheless a ruling resulting from the exercise of the discretion is not final nor unreviewable. Whether a ruling in such respect was or was not proper or justified in the exercise of a sound discretion must depend upon the peculiar facts and circumstances of the case. Where a verdict is not merely excessive, but is so grossly and palpably disproportionate to all reasonable, natural and probable consequences attributable to the alleged acts as testified to and described, and where the testimony with respect thereto is doubtful or improbable or induced by ulterior motives, and where the verdict is attributable not to a fair and impartial consideration of the law and the evidence bearing on the material issues, but to an abuse in the rendition of it, resulting alone from passion and prejudice, the whole verdict is so tainted that to deny a new trial upon a remission constitutes an abuse of discretion, for in such case the verdict is no verdict, and the amount fixed by the court but an arbitrary amount, and in effect a denial to a defendant of a trial by a jury on a consideration of only the law and the evidence in the case.

I thus think the judgment should be reversed and the cause remanded for a new trial.