Clinton P. Underwood v. Stephen J. Cray. Stephen J. Cray v. Clinton P. Underwood

• Decision Date: 07 January 1920
• Citation: 108 A. 513,94 Vt. 58
• Parties: CLINTON P. UNDERWOOD v. STEPHEN J. CRAY. STEPHEN J. CRAY v. CLINTON P. UNDERWOOD
• Court: Vermont Supreme Court

108 A. 513

94 Vt. 58

CLINTON P. UNDERWOOD v. STEPHEN J. CRAY. STEPHEN J. CRAY v. CLINTON P. UNDERWOOD

Supreme Court of Vermont

January 7, 1920

November Term, 1919.

ACTIONS OF TORT for assault and battery. In each case the plea was son assault demesne, and issue was joined upon a replication of de injuria. The cases were tried together by jury at the April Term, 1919, Windham County, Slack, J presiding. In the case of Underwood v. Cray there was verdict and judgment for the plaintiff, and the defendant excepted. In the case of Cray v. Underwood there was verdict and judgment for the defendant, and the plaintiff excepted. The opinion states the case.

Judgments affirmed.

E W. Gibson and W. A. Graham for Clinton P. Underwood.

Barber, Barber & Miller for Stephen J. Cray.

Present: WATSON, C. J., POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

These cases were tried as one, both here and in the court below. They grow out of a series of fist fights which the parties indulged in at Bellows Falls in the fall and winter of 1918. To avoid confusion, the parties will be spoken of by name. Underwood based his action on what occurred on October 14 and December 8. Cray based his on what occurred on December 8, only. A jury trial resulted in a verdict for Underwood to recover $ 2,500, which included $ 500 of exemplary damages. Cray moved to set aside this verdict for the reason, among others, that this award was unreasonable and excessive. Thereupon the court ordered Underwood to remit $ 1,000, which was done, and judgment was then rendered for $ 1,500. In Cray's case the verdict was against him, and judgment was so rendered. The cases are here on Cray's exceptions.

Underwood was a witness in his own behalf, and when he was giving his version of the trouble with Cray on December 8, he was asked by his counsel to tell what the latter did, and after describing Cray's violent assault upon him, he added, "and I suffered the greatest agony I ever suffered in my life." The court, of its own motion, ordered this part of the answer stricken out, and directed the jury to pay no attention to it. Cray excepted to it. The exception is unavailing. It is not every irresponsive answer given by a party that will support an exception. Not only must such an answer be improper in substance, but it must be apparent that the party intends to go beyond the question and to gain an advantage. Sanders v. Burnham, 91 Vt. 480, 100 A. 905. There is nothing before us to show that Underwood had any such intention when he answered as he did; the court acted promptly and effectively; we do not think that Cray was in fact prejudiced, and the exception is not sustained.

Further on in his testimony, Underwood was allowed to testify that, prior to December 8, he knew of Cray's having made assaults upon other persons. It is now urged that this was error. But the record does not show that an exception was saved; consequently, no question is reserved. Marcy v. Parker, 78 Vt. 73, 62 A. 19; Green v. Dodge, 79 Vt. 73, 64 A. 499; Townshend v. Townshend, 84 Vt. 315, 79 A. 388; Mellen v. United States H. & A. Ins. Co., 85 Vt. 305, 82 A. 4; Newton v. American Car Sprinkler Co., 88 Vt. 487, 92 A. 831; State v. Gomez, 89 Vt. 490, 96 A. 190.

During the cross-examination of Cray, he was asked if at one time he was convicted of an assault upon a person named, and he answered that two lawyers got to fighting and he paid the bill. Upon being directed by the court to answer the question, he replied, "I was, in that way. " Thereupon the record of the conviction referred to was offered and admitted. To all this Cray excepted. That it was within the discretion of the court to admit the fact of this...