Clark v. Tudhope

• Decision Date: 11 October 1915
• Citation: 95 A. 489
• Parties: CLARK v. TUDHOPE et al.
• Court: Vermont Supreme Court

95 A. 489

CLARK

v. TUDHOPE et al.

Supreme Court of Vermont. Franklin.

Oct. 11, 1915.

Exceptions from Franklin County Court; Leighton P. Slack, Judge.

Trespass by Warren Clark for assault and battery against James Tudhope and others. Verdict and judgment for defendants, and plaintiff excepted. Reversed.

Argued before POWERS, C. J., and WATSON, TAYLOR, and HEALY, JJ.

E. A. Ayers and F. L. Webster, both of Swanton, for plaintiff. Hogan & Hogan and C. G. Austin & Sons, all of St. Albans, for defendants.

WATSON, J. In plaintiffs opening case his witness J. S. Tassie testified to having a conversation with defendant Tudhope a few days before the time of the alleged assault, in which the latter said he was going to build a fence, and that he would like to set up a post there and have Clark (the plaintiff) pull it out so he could get at him. The evidence was received under an offer to show that this defendant made a threat against the plaintiff on that occasion. Defendants moved to have the testimony stricken out because it did not fulfill the the offer as containing a threat. The motion was granted, to which plaintiff excepted. This was error. We think the evidence was a substantial compliance with the offer in the respect named. It certainly was reasonably subject to the construction of being a threat, and if it was fairly suceptible of any other construction, the intended meaning was a question of fact for the jury. 1 Thomp. on Trials, § 1105; Melendy v. Ames, 62 Vt. 14, 20 Atl. 161.

In recross-examination of defendant Tudhope, he was asked whether the defendants, the men who were present at the time of the alleged assault and took part in whatever happened at the cemetery, were related, most of them, and exception was saved to the exclusion of the question. It is sufficient to say in this connection that the record does not show the question to have been proper recross-examination. It may have been excluded for that reason.

Defendant Charles Ray testified in direct examination that he was one of the defendants who met the plaintiff's servant Mashetere as the latter was crossing the cemetery to go to plaintiff's assistance, and talked with Mashetere, telling him he was not needed there, and he better not mix up in the trouble. In cross-examination Ray was asked the question: "You didn't want Mr. Clark to have any assistance there, did you?" To the exclusion of this question plaintiff excepted. The witness was a defendant, and the question was calculated to bring out, in effect, that his conduct to which he testified in direct examination was actuated by prejudice, ill will, against the plaintiff. It should have been permitted. 2 Wig. Ev. § 950. See Crawford v. Joslyn, 83 Vt. 361, 76 Atl. 108, Ann. Cas. 1912A, 428.

In connection with the claim of the plaintiff that Tudhope, at the time of the alleged assault, placed his knee and bore his weight upon the plaintiff's chest, while the latter was lying on the ground when the revolver was being taken away from him, the plaintiff's evidence tended to show that thenceforward the right side of his chest was crushed in, some of his ribs were either broken or detached, his heart was displaced about an inch to the left, and that his condition was caused by the violence of the blows he received in his chest from the defendants, and that after the alleged assault he went to bed and suffered burning pain in the chest in the region of the breastbone. The defendants' evidence tended to show that these claims of the plaintiff were false, and introduced an expert medical witness, one W. J. Upton, who testified that he had recently examined the plaintiff, and there was nothing to indicate that his chest had been crushed in; that the unnatural and unsymmetrical condition of the chest and the apparent depression in the right side of the same were, in his opinion, not caused by external violence, as claimed by plaintiff, but by a disease called emphysema, a disease of slow development, from which the plaintiff had been suffering for years, and a disease producing an abnormal enlargement...