Barette v. Carr

• Decision Date: 31 August 1903
• Citation: 56 A. 93,75 Vt. 425
• Court: Vermont Supreme Court
• Parties: BARETTE v. CARR et al.

56 A. 93

75 Vt. 425

BARETTE

v. CARR et al.

Supreme Court of Vermont. Franklin.

Aug. 31, 1903.

Exceptions from Franklin County Court; Tyler, Judge.

Action by Joseph Barette against Henry Carr and John Carr. From a judgment setting aside a verdict for plaintiff, defendants bring exceptions. Affirmed.

Argued before MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

D. G. Furman and Henry A. Burt, for plaintiff.

Felix W. McGettrick and E. A. Ayers, for defendants.

STAFFORD, J. The plaintiff was occupying a building of the defendants', when the defendants, with the assistance of several others, are alleged to have assaulted and ejected him. One question was whether the defendants had extended the time of the plaintiff's occupancy, so that he was in possession rightfully, and this question the jury decided in favor of the plaintiff by a special finding; so that, if the defendants did eject the plaintiff by committing an assault upon him, they were liable in this action. The defendant Henry was present during the whole affair, hut the defendant John was present during the latter part only. The evidence tended to show an assault by Henry before John came, and also after he came. The jury were, of course, told that they should not return a verdict against both except for an assault that both were engaged in, so that, if their verdict was against both, it must be only for what occurred after John came upon the scene; but that, if they found a verdict against Henry alone, they might include damages for what he did before John came as well as after. The verdict was against Henry alone, and, being for $10 only, the court, upon motion, set it aside as grossly inadequate, and in giving its reasons said that "the jury would have failed in their duty if they had not found that Henry Carr was active in throwing the plaintiff out of doors." While being expelled, the plaintiff had put out his hand against the broken glass of the door, and cut it severely, and this the court said was an incident of the affray, for which he was entitled to recover, if the ejection was unlawful. Thus the court, in substance and effect, decided that the damages were grossly inadequate if the jury found that Henry did eject the plaintiff, and that the verdict was grossly against the weight of evidence unless they did find so. We cannot, therefore, adopt the defendants' view that the jury may rightfully have found that Henry was guilty by reason only of what occurred before John came and before the plaintiff was ejected, for to do so would be to revise and overrule the discretion of the court below,...