Bagley v. Mason

• Decision Date: 31 October 1896
• Citation: 37 A. 287,69 Vt. 175
• Parties: BAGLEY v. MASON.
• Court: Vermont Supreme Court

37 A. 287

69 Vt. 175

BAGLEY

v. MASON.

Supreme Court of Vermont. Caledonia.

Oct. Term, 1896.

Exceptions from Caledonia county court; Ross, Chief Judge.

Trespass by C. E. Bagley against Thomas Mason for assault and battery. Plea, the general issue. There was judgment on a verdict for plaintiff, and defendant excepts. Affirmed.

The plaintiff's evidence tended to show that on the 24th day of February, 1895, while he was lying upon a lounge at his boarding place, the defendant, in a state of intoxication, struck him in the abdomen, inflicting an injury, which resulted in hernia; that he had suffered a general loss of health, and had been unable to work. Against the defendant's exception, the plaintiff was permitted to show that in July, 1895, he was sick with a cold and a resulting fever, and that this illness aggravated the injury inflicted by the defendant; also, that immediately after receiving the blow he complained to his attendant (not a physician) of being in great pain; and was permitted to show the complaints made by him to physicians whom he consulted, and by whom he was treated, while contemplating this suit, with the understanding on his and their part that they would be used as witnesses therein. A witness for the plaintiff had testified that the plaintiff, though complaining of a cold just before the assault, did not then appear to be suffering greatly. On cross-examination, defendant's counsel was refused permission to ask the witness if, at the time, he believed from the plaintiff's appearance that he was in pain. To this refusal the defendant excepted.

W. P. Stafford, for plaintiff.

Bates & May, for defendant.

MUNSON, J. The plaintiff claimed that the defendant struck him in the abdomen while he was lying upon a lounge. The defendant denied the striking. The plaintiff introduced testimony to show that the defendant was intoxicated, and included therein evidence of what the defendant did before he came into the plaintiff's presence. It is insisted that this evidence should have been confined to a direct statement of the witness as to the defendant's condition. But we think the same reason which permits proof of intoxication as bearing upon the probability of an assault will permit proof of the extent and effect of that intoxication to increase the degree of the probability. This cannot always be effectively presented without some descriptive testimony. We think it was proper to show the boisterous and belligerent conduct of the defendant just before the alleged assault, and while he was approaching the place of it, and that in doing this it was permissible for the witness to state that the defendant collared him as he passed through the room.

The testimony of the physicians as to the plaintiff's condition in July, when suffering from a cold and resulting fever, was properly received. It was competent as tending to show that the injury complained of was of such a nature and severity that it was aggravated by other indispositions. The situation of the ease, as affected by this testimony, was properly brought to the attention of the jury. They were distinctly told that they were to compensate the plaintiff only for the suffering and loss occasioned by the defendant's act.

The testimony as to the complaints of bodily suffering made by the plaintiff to his physicians was properly received. Evidence of those made to an attendant not a physician was also admissible. Greenl. Ev. § 102. Nor was it error to receive testimony as to such complaints made when the suit was in contemplation. Kent v. Lincoln, 32 Vt 591. The question whether...