feited, and that plaintiff was entitled to recover. The trial court was not in error in directing a verdict for the plaintiff for the amount stated.

The judgment of the circuit court is affirmed.

MOORE, C. J., and STEERE, BROOKE, STONE, and BIRD, JJ., concurred. OSTRANDER, J., did not sit.

In an action for assault and battery, including forcible ravishment, it was competent to show by plaintiff that, on the day following, she complained to her husband of defendant's wrongful act.

2. SAME.

Error did not occur on the trial in refusing to strike out testimony that defendant had asked a witness to go on his bond" after plaintiff's husband had approached him threateningly the day following the assault.

3. SAME TRIAL-CROSS-EXAMINATION.

Nor was it error to permit plaintiff's attorney, on cross-examination, to ask a witness, who gave testimony in support of defendant's claim of an alibi, whether he had been charged with and tried for statutory assault upon a girl of less than 15 years of age.

4. RAPE TRIAL-CHARGE-FORCE USED-CIVIL LIABILITY. Where plaintiff in one count charged assault and battery and in a second charged forcible ravishment, and her evidence supported a recovery under the second count, defendant, who denied that he had assaulted or ravished plaintiff and who claimed an alibi, was not entitled to a requested instruction that because plaintiff's evidence showed she was taken unawares and frightened so she could not resist, the jury might find that plaintiff consented to the unlawful relations.

5. ASSAULT AND BATTERY-RAPE-RESISTANCE.

A married woman is entitled to recover for assault and battery accompanied by rape, if the act was perpetrated against her will, whether or not she resisted to the limit.

6. SAME.

In such civil action the charge of carnal knowledge does not change the nature of the action for assault and battery, it is only matter of aggravation, affecting the measure of damages.

Instructions given upon plaintiff's request that if defendant's witnesses testified falsely in support of his alleged alibi, the fact might be considered as bearing upon defendant's guilt, was not error, nor was defendant prejudiced by failure of the court to charge similarly as to plaintiff's witnesses, in the absence of any request for such a charge.

8. SAME-CHARGE-PUNITIVE DAMAGES.

The court should have given a requested instruction that plaintiff was only entitled to compensation, and anything beyond that was unauthorized, that the jury could not award an additional sum as punishment for the alleged wrong; the error was not obviated by instructing the jury that the purpose of awarding damages was to compensate plaintiff for her injuries, and not to punish defendant, the language of the charge being advisory rather than mandatory, and in view of plaintiff's statement that her purpose in commencing suit was to punish defendant, not to get money, the charge was insufficient.

9. DAMAGES-REPUTATION-GOOD NAME- EVIDENCE,

Without special averments of the declaration or testimony tending to show that plaintiff was injured in her good name and reputation, it was error to permit the jury to award dam. ages for that element of the alleged assault.

10. SAME-EXCEPTIONS-SAVING QUESTIONS FOR REVIEW. Upon errors committed by the court in charging the jury, & party may assign error without bringing the matter to the attention of the trial judge. 3 Comp. Laws, § 10247, 5 How. Stat. (2d Ed.) § 12960.

Error to Kent; McDonald, J. Submitted June 21, 1912. (Docket No. 64.) Decided November 8, 1912.

Trespass by Myrtle Totten, an infant, by Ryol J. Totten,

her next friend, against Bion H. Totten, for assault, battery, and rape. Judgment for plaintiff. Defendant brings error. Reversed.

Rodgers & Rodgers and M. L. Dunham, for appellant.

Albert B. Cogger and Ellis & Ellis, for appellee.

STEERE, J. Plaintiff instituted these proceedings against defendant in an action of trespass to recover damages for an assault and battery committed upon her person, including a ravishment. The assault is alleged to have taken place at plaintiff's home in the township of Solon, Kent county, Mich., on Friday, the 26th of August, 1910. The case was tried in Kent county circuit court before a jury, and plaintiff recovered a verdict and judgment in the sum of $3,000.

Defendant has removed the case to this court on writ of error, alleging 16 assignments-12 to the charge of the court, 3 with referenee to the admissibility of testimony, and 1 to the court's refusal to grant defendant's motion for a new trial. At the time of the alleged assault, plaintiff was a married woman 20 years of age. She had been married 4 years, and was the mother of one child, 24 years old. Her husband, Ryol J. Totten, is a nephew of the defendant, and at the time in question was his tenant. Plaintiff and her husband were occupying and cultivating a farm of defendant, consisting of about 90 acres, located a little over a mile eastward from the village of Cedar Springs, in which village defendant resided with his family. By the arrangement under which plaintiff and her husband occupied the farm, defendant had reserved to himself a small room on the first floor of the farmhouse, called the "clothes press," to which there was access by a door from without, an inner door connecting with an adjoining bedroom usually occupied by plaintiff and her husband. Defendant was a man 54 years of age, having a wife and two grown daughters. Both he and his wife,

singly and together, were accustomed to visit the farm from time to time as any matter of business or inclination suggested. They apparently were on familiar and friendly terms with plaintiff and her husband up to the time of the alleged assault.

On August 26, 1910, plaintiff's husband was absent from home, having gone to Lansing on an early morning excursion train, returning after midnight of the same day. Plaintiff remained at home alone with her little boy. It is her claim that about 3 o'clock in the afternoon, while she was in her bedroom combing her hair and her child was playing out in the yard, defendant came into the room through the door from the "clothes press," to which he had access from the outside, and addressed her, first asking where her husband and the hired man were; that his presence did not alarm nor particularly surprise her at first, as he was frequently around the farm, and had control of the adjoining room; that after some commonplace conversation about farm matters, during which he handed her an apple, he proceeded to approach her in an insulting manner, followed by an unexpected assault in which he overpowered her, threw her on the bed, and, with force and violence and against her will, perpetrated the outrage complained of. The defense was a total denial, not only of the assault, but of defendant's having met plaintiff or been at the farmhouse that day. Much testimony was introduced on each side touching his claim of alibi.

Error is assigned on the ruling of the court in allowing plaintiff to testify against objection that she told her husband of the assault the following day. On direct examination she was asked by her counsel:

"Q. Did you ever tell your husband this? "A. I did.

"Q. When?

"Mr. Rodgers: I object to that as immaterial and incompetent."

The objection was overruled and the witness answered:

'Saturday. That noon to the dinner table."

A motion was made to strike this testimony out, which was denied. The Saturday referred to was the day following the alleged assault, witness having previously testified to going to her parents' home on the evening of that day, taking her baby with her.

It is claimed that the rule allowing proof of complaints made to others by the female assaulted, which is an exception to the general hearsay rule, is applicable only to criminal prosecutions, and should not prevail in civil actions, nor be extended to permit a plaintiff in a civil action to bolster up her claim for damages by proof of selfserving statements made by herself after the alleged assault. While the question does not appear to have been squarely before this court in a civil action, it has more than once been held in carefully considered criminal cases that such testimony is competent. Brown v. People, 36 Mich. 203; People v. Brown, 53 Mich. 531 (19 N. W. 172); People v. Gage, 62 Mich. 271 (28 N. W. 835, 4 Am. St. Rep. 854); People v. Marrs, 125 Mich. 376 (84 N. W. 284); People v. Bernor, 115 Mich. 692 (74 N. W. 184). In civil actions, failure of the female to complain, or the continued existence of friendly relations between the parties, is admissible as tending to show the falsity of the charge, and, on the other hand, we think it likewise fairly admissible, as tending to show the genuineness of the charge, to allow proof not only of recent subsequent conduct and appearance, but complaints. The plaintiff in this case gave no details of the conversation or what was said beyond the fact that she told him. This rule is well reasoned in Gardner v. Kellogg, 23 Minn. 463, wherein the court said:

66 Whatever may be the reason for the rule as applied to criminal cases-whether it is that statements of this character as to the cause and immediate consequences of the injury, made by the injured party so soon after the injury, and while still under the influence of the smart and suffering occasioned by it, constitute a part of the res gestæ, as was held in Thompson v. Trevannion, Skinner, 402, approved in Aveson v. Lord Kinnaird, 6 East, 188,