Huckabee v. Montgomery, 814.

• Decision Date: 05 January 1943
• Docket Number: No. 814.,814.
• Court: Vermont Supreme Court
• Parties: HUCKABEE v. MONTGOMERY.

29 A.2d 810

HUCKABEE

v. MONTGOMERY.

No. 814.

Supreme Court of Vermont. Orange.

Jan. 5, 1943.

Exceptions from Orange County Court; Samuel H. Blackmer, Judge.

Action by Edwin C. Huckabee against Erwin Montgomery for assault and battery, wherein the plaintiff had a verdict and judgment and the defendant took exceptions.

Judgment affirmed.

Before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Finn & Monti, of Barre, for plaintiff.

C. O. Granai, of Barre, for defendant.

STURTEVANT, Justice.

This is an action for assault and battery. The plaintiff had a verdict and judgment below and the case is here on the defendant's exceptions.

In his brief the defendant states that the plaintiff introduced several photographs in evidence, and that; "numbers 5 and 7 were allowed as exhibits by the court and the defendant excepted to their allowance as exhibits. Tr. 36, 37, 38, 39, 40." This method of referring to questions mentioned as presented by the exceptions is followed throughout the defendant's brief. This is inadequate briefing. The brief should contain a clear statement of the exceptions relied upon and the points to be considered under each of them. West Rutland Trust Co. v. Houston et al., 104 Vt. 204, 209, 158 A. 69, 80 A.L.R. 664, and cases cited.

However, we have read the various pages of the transcript to which the defendant's brief refers and no error is made to appear.

The two photographs, plaintiff's exhibits 5 and 7, were offered for the purpose of showing the plaintiff's position at the time he was struck by the defendant. There was evidence in the case tending to show that the position of the plaintiff as shown by the pictures was practically the same as when the defendant struck him. The photographs were received in connection with that testimony and the jury were correctly instructed as to the use they could properly make of those exhibits. The photographs were properly received in evidence. Thayer v. Glynn, 93 Vt. 257, 260, 106 A. 834; Davis, Adm'r, v. Raymond, 103 Vt. 195, 200, 152 A. 806.

The plaintiff on direct examination was asked, "are you a man who swears ?" To this question he answered, "no." In cross examination the plaintiff stated that he had never cursed a person in his life. The defendant offered evidence tending to show that the plaintiff used profane language on the day after the assault. This was offered for the purpose of impeaching the plaintiff as a witness. The offered evidence was properly excluded because it appears that the defendant was attempting to impeach the plaintiff on a collateral and immaterial issue. Niebyski v. Welcome, 93 Vt. 418, 421, 108 A. 341; Cummings v. Connecticut Gen. Life Ins. Co., 102 Vt. 351, 363, 148 A. 484. See Wig. on Ev, Vol. 2, § 1020.

The defendant attempted to save an exception to...