Anna E. Dubois v. Barney Roby
| Citation | 80 A. 150,84 Vt. 465 |
| Parties | ANNA E. DUBOIS v. BARNEY ROBY |
| Decision Date | 27 May 1911 |
| Court | United States State Supreme Court of Vermont |
February Term, 1911.
TRESPASS for assault and battery. Plea, the general issue. Trial by jury at the April Term, 1910, Essex County Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the case. See State v. Roby, 83 Vt. 120.
Judgment affirmed.
Harry B. Amey for the defendant.
George L. Hunt for the plaintiff.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
This is an action of trespass in several counts for assault and battery. On trial, Anna Dubois was the sole plaintiff, Arthur Dubois, who was her husband, having been permitted to become non-suit without costs. Trial by jury was had and verdict and judgment were for the plaintiff. The defendant excepted.
The plaintiff's evidence tended to show that she and her family lived at the house of one Fred Contin, about forty rods from the house of one Thomas Lapoint, and that while she was so living, January 10, 1909, in the evening, the defendant and three other men came from, or near, the Lapoint house, and approached the Contin house together, that the defendant was dressed in woman's clothes, and that when near the Contin house he left his companions in the road and came to the back porch of the house where the plaintiff was and assaulted and beat her, at the same time telling her to get out of the road and addressing her by a vile name; that thereupon the plaintiff called to her mother, who was Mrs. Contin, and to Willie and Meddie Contin, small brothers of the plaintiff, who were near the barn on the Contin place; that the boys came to the porch on the run, and that the defendant met and chased them around to the front of the house, that at a front corner of the house the defendant took up a wooden trough that was leaning against the house under a water spout, tried to hit the boys with it, and then threw it at them; that, while the defendant was chasing the boys around the house, the plaintiff ran into the house from the back porch, got some hot water in a dipper, came to the front door of the house and threw the hot water at the defendant as he was chasing the boys; that the defendant then ran at her trying to hit her with his fists; that the two boys ran for help, that the plaintiff took a position in the kitchen door-way, and that while she stood there the defendant threw a piece of stovewood through the bedroom window, and that one Joe Haley, standing close to the defendant, at the same time threw a large iron nut through the same window; that the plaintiff had an infant child in the bedroom in a crib, that the child cried out, that the plaintiff rushed into the bedroom and found a stick of wood on the floor, and an iron nut in the crib in which the child was, and found the lamp broken and on the floor, and glass from the window on the floor; that the plaintiff picked up the child and took it to Mrs. Contin in the kitchen; that the events thus far narrated followed each other in immediate sequence, and that thereafter for an hour or two, and until the boys returned with help, the defendant and other men in his company threw pieces of iron and wood at and into the house while the plaintiff and her child were therein, and that all these doings greatly frightened the plaintiff; that the plaintiff's husband was away from home on this evening, and that all of the missiles referred to were left where they fell until the following evening, when the husband returned home; that on the evening of his return and the next morning he gathered up these things, some being found in the kitchen, some in the bedroom, some on the front porch, some thereabouts; that he gathered up of these missiles, in the kitchen, an iron link, a drill, a flat-iron, a cant-hook, and two sticks of wood; in the bedroom, an iron nut and a stick of wood; and on the front porch and immediately about it, a piece of iron pump-handle, a barn door hanger, two stove covers, a pair of hinges, a horse-shoe, seven six inch bolts, some eye-bolts, one twelve inch bolt, one sixteen inch bolt, an iron link, an iron pipe, two iron collars, an iron nut, a peavey pick, a sled roller gudgeon, two draw hooks, a coal-chute link, an iron sled-start, two pieces of wagon tire, one scale weight, one iron yoke, one iron hub box, a piece of wagon spring, two pieces of iron called straps of iron, an iron clevis, an iron rod, and two pieces of stovewood.
The plaintiff's evidence tended to show that the plaintiff's husband upon his return found the screen doors on the front of the house all broken, fourteen lights of glass broken out of the front windows, and two out of a cellar window at an end of the house, the window sash broken out of the bedroom window, a bracket broken off from one piazza post, seven clapboards broken and split, and the piazza posts, clapboards, window casings, and door casings dented or otherwise marred in numerous places, and that some of the dents were three-fourths of an inch deep.
The plaintiff's evidence tended to show that the surrounding premises were then examined for the purpose of ascertaining where the missiles found had been taken from, and that there were discovered numbers of fresh tracks leading to a pile of old iron and stovewood on the Roby place, which was across the road from the Contin house, and which was owned in part by the defendant; that snow had been recently removed from this pile, that the pile appeared to have been recently disturbed, and that the iron in the pile was of the same general appearance as that found in and around the Contin house.
Two of the counts in the plaintiff's declaration were, without much difference of phraseology, brief counts for assaulting, beating and ill-treating the plaintiff. One of the counts made the same general charge, and also alleged more particularly that the defendant threw divers missiles of wood and of iron at the plaintiff, and at and into the dwelling house occupied by her, and that the defendant likewise aided, assisted and abetted other persons in doing the same, all with the intent and effect of putting the plaintiff in great fear of bodily harm.
The evidence given by the plaintiff tending to show what the defendant did in chasing the small boys when they came up at their sister's call was received under objection and exception. But the plaintiff was entitled to narrate precisely as it occurred this continuous and inseparable performance, beginning and ending, as her evidence tended to show, in a direct assault upon her.
No rule of evidence required her to make her narrative unintelligible by leaving out the part objected to. Smith's Admr. v. Smith, 78 Vt. 33, 61 A. 558. The ground on which the evidence was offered and received was that it bore upon the question of exemplary damages, and it was properly received upon that ground, for it tended to show that the doings by the defendant of which the direct assault upon the plaintiff was an immediate part proceeded from a wanton, evil and wicked motive. It tended to show his motive in the very matter of the charge against him. Earl v. Tupper, 45 Vt. 275; State v. Roby83 Vt. 121, 126, 74 A. 638; Devine v. Rand, 38 Vt. 621; Ellsworth v. Potter, 41 Vt. 685; Hoadley v. Watson, 45 Vt. 289, 12 Am. Rep. 197. Subject to objection and exception the plaintiff identified the drip-trough which the defendant threw at the boys and the drip-trough was received in evidence. This was admissible for the same reasons that the evidence concerning it was admissible.
Subject to objection and exception the plaintiff testified that she recognized the defendant and Joe Haley as two of the men in front of the house and that she saw the defendant throwing wood towards the house and into the bedroom window, and that when the defendant threw the wood, he and Haley were together, and that, at about the same time that the defendant threw the wood, Haley threw an iron nut. This was all admissible, for what the defendant threw at the dwelling house while the plaintiff was therein tended to sustain the count for an assault by putting her in fear of bodily harm in that way, and the evidence tended to show that Haley was acting jointly with the defendant and that Haley's acts in bombarding the house were in law the acts of the defendant.
The plaintiff disclaimed any right to recover for acts which were not the defendant's and no exception was taken to the charge upon the subject of what would constitute his acts, nor was the charge upon any other subject excepted to.
The plaintiff testified, subject to objection and exception by the defendant, that in April, following the January in question, on an occasion when the defendant was riding by the house, he shouted out to her and her husband: "There is lots more iron to throw towards the house." This announcement of the defendant, considered in connection with the evidence tending to show that the stovewood and the old iron thrown on the night in question came from the Roby place, in which the defendant had an interest was in the nature of an admission by the defendant of responsibility for the entire bombardment of the house...
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