I am unable to bring myself into accord with the opinion written by Mr. Justice SHARPE in this case. I do not think the proof proffered by defendants for the so-called purpose of mitigating damages was rendered admissible by any excerpts from the charge of the court. Permitting the jury to consider the good faith of defendants was more favorable to them than they were entitled to. There could be no good faith in this unjustified assault on this defenseless woman. The charge as a whole very carefully limited the plaintiff's recovery to compensatory damages only. While not precisely in point, I think that that line of cases which excludes evidence of provocation from causes existing long enough before the assault to permit the blood to cool, and the other line of cases which excludes evidence of a party's reputation in a civil suit where such party's reputation is not directly in issue, are by analogy applicable. In Millard v. Truax, 84 Mich. 517 (22 Am. St. Rep. 705), it was said by this court:
"A defendant cannot give in evidence in mitigation of damages for an assault the acts and declarations of the plaintiff at a different time, or any antecedent facts which are not fairly to be considered as part of one and the same transaction."
And in Fahey v. Crotty, 63 Mich. 383 (6 Am. St. Rep. 305), it was also said by this court:
"The general rule is that it is not competent to give evidence of the general character of the parties to a cause, nor of particular facts not in issue, with a view of raising a presumption to a party, or unfavorable to his adversary. Best, Ev. § 257; 1 Phil. Ev. p. 757 et seq. *Page 233
"It is only where the very nature of the proceedings is such as to put the character of the parties in issue that a different rule prevails. This is not the case in an action for an assault and battery. * * *
"In civil actions, with the exception of those cases where, by the pleadings, the character of the party is put in issue, the weight of authority is against the admissibility of such testimony to rebut imputations of misconduct or fraud."
A leading case which had under consideration the question of whether in an action for assault and battery provocation which did not amount to justification could be considered by the jury in mitigation of compensatory damages is Goldsmith's Adm'r v.Joy, 61 Vt. 488 (17 A. 1010, 4 L.R.A. 500, 15 Am. St. Rep. 923). It was there said:
"If provocative words may mitigate, it follows that they may reduce the damages to a mere nominal sum and thus practically justify an assault and battery. But why under this rule may they not fully justify? If in one case, the provocation is so great that the jury may award only nominal damages, why, in another, in which the provocation is far greater, should they not be permitted to acquit the defendant and thus overturn the well-settled rule of law, that words cannot justify an assault. On the other hand if words cannot justify they should not mitigate. A defendant should not be heard to say that the plaintiff was first in the wrong by abusing him with insulting words and therefore, though he struck and injured the plaintiff, he was only partly in the wrong and should pay only part of the actual damages."
In Shoemaker v. Jackson, 128 Iowa, 488 (104 N.W. 503, 1 L.R.A. [N. S.] 137), it was held that the jury might not consider in mitigation of damages in an action for assault and battery the fact that plaintiff had assisted in the elopement of defendant's minor daughter. In that case the blood had had time to cool and it was said: *Page 234
"Provocation, to be admissible in mitigation of damages, must be so recent and immediate, as to induce a presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited. If the assault has been made after time for reflection, and under circumstances leading to the presumption that it was for revenge, he stands in the position of an original trespasser, and conduct of the other party will not serve as an extenuation."
And in Lovelace v. Miller, 150 Ala. 422 (43 So. 734, 11 L.R.A. [N. S.] 670), it was held that evidence of an insult to defendant's daughter was not admissible in mitigation of damages. In Mahoning Valley R. Co. v. De Pascale, 70 Ohio St. 179 (71 N.E. 633, 65 L.R.A. 860), it was said by Mr. Justice Crew, speaking for the court:
"The theory of the instruction asked by counsel for the railway company is, that in an action for personal tort, words of provocation spoken by the plaintiff should be taken and considered by the jury in mitigation of actual or compensatory damages, as well as in mitigation of exemplary or punitive damages. Whether or not they may properly be so taken and considered and such effect be given them, is the question here presented by this request to charge. On this proposition the authorities are not in entire harmony. While in perfect accord upon the proposition that mere oral provocation or abusive language, is not a defense and will not of itself justify the offended party in assaulting, or in inflicting injury upon the person so offending, there is some conflict and contradiction in the decisions of the courts of last resort on the question whether mere provocative language can have the effect to mitigate or reduce compensatory damages, or whether it is to be limited in its office and effect to the mitigation and reduction of punitive damages, in those cases where punitive damages may be properly awarded. We think, that the better rule and the clear weight of authority, is in favor of the proposition that actual or compensatory damages are not in any case, subject to mitigation, by proof of mere provocation. The malice of the *Page 235 defendant can never have the effect to increase the damages which a plaintiff may recover for actual pecuniary loss or injury, but such damages are wholly unaffected by either the presence or absence of malice on the part of the defendant. How then, or upon what principle can it reasonably be held that provocation on the part of the plaintiff, which does not in law amount to a justification, may mitigate such damages. To so hold would, in effect, be to allow such provocation to be used as a defense, and to thus permit by indirection that which could not be done directly."
In Hare v. Marsh, 61 Wis. 435 (21 N.W. 267, 50 Am. Rep. 141), it was said:
"By these instructions the jury were, in effect, told that in determining the amount of actual or compensatory damages they might take into consideration the means of the defendant, and his public position at the time as postmaster and president of the village. What legitimate bearing the wealth or poverty of the defendant, his office, public position, or private station had upon the damages which the plaintiff had actually sustained, we are unable to perceive. The plaintiff's actual damages were what they were, and could neither be increased nor diminished by any conceivable position or circumstances of the defendant. The instructions given were in direct conflict with the whole current of authority in this State."
The general rule is thus announced in 5 C. J. p. 680:
"As a general rule, in actions for an assault and battery the character of neither party is in issue, and cannot be the subject of the attack, unless it is first attacked or supported by the adversary, or placed in issue by the nature of the proceeding itself."
To have admitted the proffered proof would, under the guise of mitigating the damages, have injected into the case numerous collateral issues, which the plaintiff could not be prepared or expected to meet. Of a somewhat similar situation it was said by Justice *Page 236 CAMPBELL, speaking for the court in Proctor v. Houghtaling,37 Mich. 41:
"It would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific rumors, or charges against her not going to the direct issue in the cause. She could have no means of defense against malicious fabrications which are by no means unusual in such cases, and the reputation of the purest persons could easily be ruined or damaged by allowing free scope of such testimony. As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent. A large mass of such rubbish has been introduced into this case, without any respectable authority to maintain its reception. The practice is not to be commended."
One does not have to read between the lines in this case to reach the conclusion that plaintiff had in some way offended the sensitiveness of society at Burnips Corners. A mob was organized in the absence of her husband, and the self-appointed conservators of the morals of the community took the law in their own hands and proceeded to administer it in accordance with the ethics of the Stone Age. When called to account they seek, by able and adroit counsel who understand and frankly state that the assault was without justification, to besmirch her character and under the pretext of mitigating her actual damages to try collateral issues which she can not be expected to meet and which tend, if they tend to anything, to extenuate and partially justify an unjustifiable assault. It is our proud boast that all are equal before the law. If we deviate from this we must adopt one measure of damages for the attendant of pink teas and another for the scrub woman; one for the society women and another for the magdalens. I can not *Page 237 acquiesce in such a holding. I think the trial judge correctly rejected the proffered proof although it bore the label of "mitigation of damages."
The cross-examination of plaintiff which assailed her chastity was somewhat restricted by the trial judge. But this was within his sound discretion. People v. Cutler, 197 Mich. 6, where the authorities are fully reviewed by Mr. Justice BIRD. I do not think there was an abuse of discretion in the instant case. I think the judgment should be affirmed.
BIRD, MOORE, and STEERE, JJ., concurred with FELLOWS, J.