
    Herbert Hutchinson, Appellant, v. Sigmund Stern, Respondent.
    Fourth Department,
    November 14, 1906.
    Assault and battery — no recovery for damages caused by fright of • plaintiff’s wife-r-pleading.
    A plaintiff suing to recover for assault and battery cannot recover special damages by reason of the fact that his wife, who witnessed the assault, was frightened and gave .birth to a stillborn clii-ld, whereby tbe plaintiff was deprived of her services and put to expense for medical attendance. Allegations setting ' out said facts will be stricken out as irrelevant and redundant.
    Kruse and Spring, JJ., dissented, with opinion.
    Appeal by the plaintiff, Herbert Hutchinson, from an order of the-Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 10th day of July, 1906, striking out a portion of the complaint as irrelevant and redundant.
    
      N. F. Breen, for the appellant.
    
      John Conboy and Leon Kauffman, for the respondent.
   Nash, J.:

The action is for assault and battery. . The first count of the complaint alleges that the said defendant, at the town of Orleans, county of Jefferson, H. Y., on or about the 27th day of April, 1905, with force and arms, assaulted this plaintiff, and then and there, with force and violence, seized and laid hold of the said plaintiff, and did then and there strike and beat the said, plaintiff on the head with his fist, and did then aiid there with drawn knife assault the said plaintiff, and did chase the said plaintiff across, the lands belonging to the said defendant; that said defendant, with drawn knife, did then and there threaten to take the life of the said plaintiff and did then and there with drawn knife threaten to cut plaintiff’s heart out, thereby causing the plaintiff great damage and injury, all of whi'eh the said defendant did without causé or'provocation, and by which the said plaintiff was then and. there greatly hurt, bruised and injured to the damage of the. said plaintiff in the sum of $1,000,

Jli§ second count alleges a cause of action for an assault upon the plaintiff committed at the same time and place ;and in substantially the same language as. in the first count, with additional matter, as follows: ’ ‘That while the said defendant Was engaged in the assault upon the plaintiff herein, one Lillian Hutchinson, the wife of said plaintiff, was present and'nearby; that said wife' was at ' that time pregnant with child ; that said assault upon the plaintiff caused the said wife great distress and did greatly frightén her. That because of such fright and distress the plaintiff’s wife-gave premature birth to a stillborn child. That said "plaintiff was put to great expense in the care of and doctoring of his said wife, and that the plaintiff was deprived of the services of his wife on account of' ■ the said assault upon the plaintiff herein to the plaintiff’s damage in the sum of One thousand dollars.”

Which additional matter was, by the order of the Special Term, stricken, out as irrelevant and redundant..

The rule is settled in our State that fright aloné cannot form the - basis of an action. (Mitchell v. Rochester Railway Co., 151 N. Y. 107.)'

In Wulstein v. Mohlman, (5 N. Y. Supp. 569) it was held 'that one. who obtained, property by duress- of threats is not liable for Consequential mental distress and physical suffering which caused a miscarriage of the plaintiff, such damages being regarded as too remote.

We are not referred to any case which sustains the contention of •the plaintiff, that the plaintiff in an action for "assault may not only recover the damages sustained in his own person, but also the dam- - ages sustained by reason of injury to the wife occasioned by fright, ■ aiid consequent loss.of services of the wife.

In Williams v. Underhill (63 App. Div. 223), cited in support of- the plaintiff’s contention, the damages sought to be recovered were for an assault committed upon the person of the plaintiff, by reason of which she was made sick, sore, lame and disabled, and suffered great mental pain and anguish, and more particularly that she was nervously prostrated and became insane, and by reason- of ■ the same was compelled to expend large sains of inonéy in procuring medical attendance. The damages tlierd alleged wére suffered by the plaintiff in her oivn person, which is clearly distinguishable, from mental suffering in a person other than the one assaulted.

The question here has been directly before the courts of other States and adjudged adversely to the plaintiff's-contention.

In Hampton v. Jones (58 Iowa, 317) a claim for special damages in an action for malicious prosecution, on the ground that the wife, because of the finding of the indictment, became sick and utterly helpless, is held to be too remote.

Desertion of the husband by the wife in consequence of the publicity of a charge of- larceny and adultery is not such a natural and proximate consequence as to entitle him to special damages therefor. (Georgia v. Kepford, 45 Iowa, 48.)

In an action for false imprisonment, testimony as to the miscarriage of the wife, and the expense of doctoring her, claimed to have been caused by the plaintiff’s arrest, held, not to be admissible. (Ellis v. Cleveland, 65 Vt. 358.)

The order should be affirmed.

All concurred, except Spring and Kruse, JJ., who dissented in an opinion by Kruse, J.

Kruse, J. (dissenting):

I dissent. I am not prepared to assent to the proposition that where a man in company with his wife is without provocation assaulted by another, the husband being attacked and chased by the assailant with a drawn knife, -in consequence of which through fright the wife suffers a miscarriage, neither she nor the husband has any redress for the injury which she suffers in consequence of such willful aiid wrongful act upon the part of the assailant.

I think that proposition cannot be sustained by_reason or by any authority which we are required to follow, and is directly at variance with the decisions of the courts of our own State as I read them. (Preiser v. Wielandt, 48 App. Div. 569; Williams v. Underhill, 63 id. 223.)

I think the circumstances may he such that both are entitled to recover damages, the wife for pain and suffering and the husband for loss of services. It is true the complaint is not very definite as to just where the wife was when the assault occurred. The complaint states “present and nearby.” That may-afford grounds for requiring the complaint to be made more specific and definite respecting the nearness of the plaintiff’s wife when the assault occurred and the surrounding circumstances, but not for emasculating the complaint by - striking out allegations which the evidence may show to be entirely relevant and material.

' Motions of this character ai;e not favored and will be denied unless it appears clearly that the matter sought to be stricken out cannot in any view of the case become material. (John Church Co. v. Parkinson, 86 App. Div. 163; Rankin v. Bush, 108 id. 295; Bradner v. Faulkner, 93 N. Y. 515, 522.). And besides, when we have all the facts before us the question may not be in the ease. . • ''

I think the order should be reversed.

Spring, J., concurred.

Order affirmed, with ten dollars costs and disbursements.  