Hathaway v. Tinkham

• Citation: 19 N.E. 18,148 Mass. 85
• Parties: HATHAWAY v. TINKHAM.
• Decision Date: 28 November 1888
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 85

19 N.E. 18

HATHAWAY v. TINKHAM.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1888

COUNSEL

L. Le B. Holmes and E.D. Stetson, for plaintiff.

J Brown, for defendant.

OPINION

C ALLEN, J.

1. When the defendant was asked what the plaintiff's mother said about the wound, the question was objected to and excluded the judge saying: "I do not see how that is competent, what she said about it. She is not a party to this case." This disclosed the ground on which the evidence was excluded, namely, that it was a declaration by a third person in regard to the wound. It is, however, now sought to establish its competency on other grounds: First, that it was in the presence of the plaintiff; secondly, that it would tend to contradict or control the mother's testimony; and, thirdly, that it was a part of the same conversation testified to by her. But there is nothing to show that at the trial the admissibility of the evidence was urged on either of these grounds, and therefore they are not now open to the defendant. Wheeler v. Rice, 8 Cush. 205; Brown v. Leach, 107 Mass. 364; Baker v. Gavitt, 128 Mass. 93, 96, 97; Northampton Co. v. Campbell, Id. 104, 107; Stone v. Sargent, 129 Mass. 503, 512. Besides, there is nothing to show what the testimony of the defendant would have been, if admitted, or what the defendant offered to prove thereby, or that it would in any aspect have been material, and for this reason also an exception to its exclusion cannot be maintained. Wheeler v. Rice, ubi supra; Burke v. Savage, 13 Allen, 408; Manufacturing Co. v. Parr, 138 Mass. 462; Atherton v. Atkins, 139 Mass. 61; Warren v. Water Co., 143 Mass. 155, 164, 9 N.E. 527. Putting in evidence a portion of a conversation which is material, will not entitle the adverse party to put in other portions of the same conversation which are in their nature immaterial and incompetent. Straw v. Greene, 14 Allen, 206; Com. v. Keyes, 11 Gray, 323, 325. It cannot now be assumed that the offered testimony would have been important or material.

2. The evidence which was offered to show how the injury to the defendant's boy was caused was clearly incompetent. If this testimony had been admitted, the plaintiff might have introduced other evidence to contradict it, and thus a new issue would have been presented, having nothing to do with the issue on trial.

3. There was no error in respect to the instructions to the jury. The injury to the plaintiff may have been caused by the dog's biting him, or by jumping upon him, and throwing him to the ground. No other form of injury is suggested by the evidence reported, or by the instructions which were asked. There can be no doubt that an injury done to a person in either of these modes is within the statute. Sherman v. Favour, 1 Allen, 191; Dennison v. Lincoln, 131 Mass. 236. But the defendant asked the court to rule, in substance, that if such an injury in either mode was done in play, without any vicious intent on the part of the dog, the plaintiff could not recover; but this would be reading into the statute an element not found there. The statute is "Every owner or keeper of a dog shall forfeit to any person injured by it double the amount of damages sustained by him, to be recovered in an action of tort." Pub.St. c. 102, § 93. Similar statutes have long existed in Massachusetts. Gen.St. c. 88, § 59;...