Bonino v. Caledonio

• Decision Date: 23 March 1887
• Citation: 144 Mass. 299,11 N.E. 98
• Parties: BONINO v. CALEDONIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 299

11 N.E. 98

BONINO v. CALEDONIO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 23, 1887

COUNSEL

E.B. Goodsell, for defendant.

The evidence of the physician as to plaintiff's condition eight months after the alleged injury was not admissible unless supported by some proof that the plaintiff's condition at that time was a natural or ordinary result of the injury for which this action is brought. Blake v Lord, 16 Gray, 387; Richardson v. Hine, 42 Conn. 206. The question on the redirect, whether the plaintiff's physician found the plaintiff syphilitic, was not admissible, because it does not appear that the defendant had notice or knew that the plaintiff was syphilitic prior to the time of the alleged assault. Baldwin v. Western R.R. 4 Gray, 336; Bridges v. North London Ry. Co., L.R. 6 Q.B. 377; Pub.St. c. 167, note immediately following first form under "Torts;" Leonard v. Field, 136 Mass. 125. Evidence is admissible in actions for assault and battery, for libel, and in cases of criminal conversation, that the plaintiff in some degree brought upon himself the cause out of which the action arose. Fraser v. Berkeley, 7 Car. & P. 621; Child v. Homer, 13 Pick. 503; Watts v. Fraser, 7 Adol. & E. 223; May v. Brown, 3 Barn. & C. 113; Richardson v. Northrup, 56 Barb. 109; Wyndham v. Wycombe, 4 Esp. 16; Hadley v. Heywood, 121 Mass. 236. Evidence of the plaintiff's conduct in provoking the defendant to the particular act for which he seeks to recover is admissible. Judge v. Berkeley, 7 Car. & P. 371, note; Walters v. Brown, 3 A.K. Marsh. 556; 2 Sedg.Dam. (7th Ed.) 523. The circumstances surrounding the assault, the previous relationship of the parties, are properly admissible as res gestae, in order that the jury may judge of the facts in their true light. Fairbanks v. Witter, 18 Wis. 287; Harrison v. Harrison, 43 Vt. 417; Brown v. Kendall, 6 Cush. 293; Lund v. Tyngsborough, 9 Cush. 42; Com. v. Mann, 116 Mass. 61; Com. v. Bean, 137 Mass. 570; White v. Swain, 138 Mass. 325. Threats and acts of assault made and perpetrated by the plaintiff upon the defendant, and consisting of a series of provocations that finally culminated in an action for assault and battery, are admissible against the plaintiff in such action. 1 South.Dam. 227; 2 Sedg.Dam. (7th Ed.) 523; Millard v. Brown, 35 N.Y. 297; Fairbanks v. Witter, 18 Wis. 287; Dolan v. Fagan, 63 Barb. 73; Stellar v. Nellis, 42 How.Pr. 163. See Com. v. Barnacle, 134 Mass. 215; Harrison v. Harrison, ubi supra; Folger v. Washburn, 137 Mass. 60. The evidence of the assaults committed by the plaintiff on the defendant in this case was clearly admissible in mitigation of damages. Tyson v. Booth, 100 Mass. 258; Currier v. Swan, 63 Me. 323; Morely v. Dunbar, 24 Wis. 183; Brown v. Gordon, 1 Gray, 182; Mowry v. Smith, 9 Allen, 67; Mayne, Dam. (4th London Ed.) 430; Pub.St. c. 167, § 20; Linford v. Lake, 3 Hurl. & N. 276; Watson v. Christie, 2 Bos. & P. 224; Smith v. Shumway, 2 Tyler, 74. The evidence of the finding of the grand jury in respect to the assault for which the plaintiff seeks to recover, ought to have been admitted. Birchard v. Booth, 4 Wis. 67; Porter v. Seiler, 23 Pa.St. 424; Corwin v. Walton, 18 Mo. 71; 24 & 25 Vict. c. 100, § 42; Tate v. Humphrey, 2 Camp. 73, note; Tayl.Ev. (8th London Ed.) § 1695.

P.J. Casey, for plaintiff.

It was competent to put in testimony bearing on the extent and character of the injury, and as to how far an unsound condition of the plaintiff and the plaintiff's nose was attributable to the alleged act of the defendant. The testimony as to the assaults by plaintiff on May 9th and 10th was incompetent. Avery v. Ray, 1 Mass. 12; Tyson v. Booth, 100 Mass. 258. The action of the grand jury could not legally or otherwise have any bearing on the issue.

OPINION

W. ALLEN, J.

1. The testimony of the physician as to the condition of the plaintiff's nose eight months after the assault was in answer to the request to state the condition of the defendant at that time, so far as related to the effect of the injury to the nose. The court could not exclude the testimony without ruling that there was no evidence to connect the condition with the injury.

2. It does not appear that the question put to the physician on the redirect examination by the plaintiff was answered, nor whether the answer, if one was made, was favorable to the plaintiff or to the defendant.

3. The assault alleged in the declaration, and relied upon by the plaintiff, was the biting and mutilating of the plaintiff's nose. No justification was pleaded, but the defendant offered evidence of provocation in mitigation of damages. After evidence tending to prove that the plaintiff had threatened to assault the defendant, and had without provocation first assaulted him on the occasion in question which was admitted without objection, the defendant offered to prove that on two occasions, two or three days before the assault declared on, the plaintiff made unprovoked assaults upon him, and injured him. An exception is taken to the exclusion of this evidence. The rule in regard to the admission of evidence of this character is thus laid down in 2 Greenl.Ev. § 267: "They [the jury] are to consider any evidence of recent and immediate misconduct on the part of the plaintiff, in respect to the same transaction, tending to diminish the degree of injury which, on the whole, is fairly to be attributed to the defendant; thus, if the plaintiff himself provoked the assault complained of by words or acts so recent as to constitute part of the res gestae." That the circumstances of mitigation must form part of the res gestae has been repeatedly held by this court. Mowry v. Smith, 9 Allen, 67; Tyson v. Booth, 100 Mass. 258; Child v. Homer, 13 Pick. 503. The acts of the plaintiff offered in evidence are in nowise connected with the act of the defendant complained of, except that they are similar to the act of the plaintiff which is alleged to have accompanied and provoked it. They are incompetent, either as constituting provocation for the defendant's act, or as tending to prove the first assault by the plaintiff, which would constitute provocation. No substantive question of intent is involved in the proof that the plaintiff first assaulted the defendant, which would make evidence of former assaults competent in proof of that within the rule applied in ...