Ogden v. Rabinowitz

• Citation: 134 A.2d 416,86 R.I. 294
• Decision Date: 07 August 1957
• Docket Number: No. 9766,9766
• Parties: Peggy A. OGDEN v. Inabeth RABINOWITZ. Ex.
• Court: United States State Supreme Court of Rhode Island

Page 416

134 A.2d 416

86 R.I. 294

Peggy A. OGDEN v. Inabeth RABINOWITZ.

Ex. No. 9766.

Supreme Court of Rhode Island.

Aug. 7, 1957.

Aisenberg & Joslin, Martin M. Zucker, Providence, for plaintiff.

Hinckley, Allen, Salisbury & Parsons, Thomas J. Hogan, Joseph H. Gainer, Jr., Robinson & Adelson, Melvin A. Chernick, Providence, for defendant.

PAOLINO, Justice.

This is an action of trespass on the case. The declaration is in two counts, to which the defendant filed a plea of the general issue. The case was tried before a justice of the superior court, sitting with a jury, and resulted in a verdict for the defendant. It is before us on the plaintiff's exceptions to portions of the charge of the trial justice, to certain rulings on evidence made by him in the course of the trial and to his refusal to give to the jury certain instructions requested by the plaintiff.

The following facts are pertinent to the issues raised. On October 1, 1952 plaintiff and defendant were students at Pembroke College, plaintiff being a member of the senior class and defendant a member of the newly admitted freshman class. This was during the period known as Scut Week when the freshmen were required to do certain things at the orders of the seniors. These were referred to in the testimony as silly and trivial things, such as singing songs, wearing bibs, or rising at 5 a.m. and going down to the field for calisthenics, and doing errands for seniors.

On this day plaintiff went up to the room of the defendant and invited her and her roommate to come down to the terrace in front of one of the dormitories and participate in the activities. The plaintiff testified: 'The object of the seniors was to get as many people who would participate' and that 'It was for fun and enjoyment and a chance to meet the freshmen and freshmen to meet other seniors.' There were about fifty freshmen and twenty seniors on this terrace where the activity was taking place. The seniors who were present carried wooden paddles as symbols of authority. They stood around 'joking and watching the freshmen as they scrubbed the terrace with toothbrushes.' The seniors and freshmen were throwing water at each other, and people on all the floors were throwing water out of their windows.

The defendant testified that the freshmen had planned as a group to seize the paddles from the seniors at a given signal and to hit them. In accordance with this plan, defendant and other freshmen on a signal from one of the freshmen grabbed the paddles from the seniors. The defendant testified that she grabbed the paddle from plaintiff's hand and hit her once; that she did not intend to hurt her; that she had only intended to tap her lightly on the buttocks; and that in her excitement she did not know with what force and in what part of the back she actually struck plaintiff.

The plaintiff testified that the edge of the paddle struck her in the small of her back and that after she cried out defendant said she was sorry and had not meant to hurt her, but that the paddle twisted in her hand. The plaintiff's testimony as to the extent of her injuries and damages is not material in this proceeding and we shall therefore not consider it.

Both counts of the declaration alleged the circumstances under which the injury was inflicted and contained allegations of due care on the part of plaintiff and the duty and breach thereof by defendant. In addition, the first count included the following allegations which are the basis of the issue now under consideration, nemely, 'and the Seniors would customarily have with them paddles as a symbol of their authority; and the Freshmen would customarily seek to obtain possession of said paddles; that the defendant did obtain possession of a paddle * * *.' The second count differed from the first in that it contained the following allegation: 'and the Seniors would customarily have with them paddles as a symbol of their authority; that on the final day of said 'Scut Week,' to wit, October 1, 1952, the Freshmen did customarily engage in the sport commonly known as 'hazing' the Seniors, and would attempt to obtain possession of the Seniors' paddles, and each Freshmen would attempt to gently tap the buttocks of a Senior with the face of a paddle; and the said defendant did obtain possession of a paddle for the purpose of tapping the buttocks of a Senior * * *.'

However, at the trial plaintiff testified that there never was such a custom and that she never knew of a freshman seizing a paddle from a senior and striking her. She testified further that these allegations were inserted in the declaration without her knowledge.

The plaintiff has filed fifteen exceptions. However, she has expressly waived exceptions numbered 2, 3, 5, 6 and 8, and has briefed and argued the remaining exceptions under six main points. Exceptions 10, 14 and 15 are the basis of plaintiff's point I wherein she contends that the trial justice erred in charging the jury that plaintiff was bound by all of the allegations stated in each count of her declaration and was not permitted by law to deny an allegation that there was a custom of freshmen attempting to gain possession of paddles from seniors or to strike seniors after getting possession of the same.

In referring to the first count the trial justice included the following instruction, namely, 'that when a party comes in here charging upon his declaration the defendant with certain wrongs he is bound by the declaration that he files. He recovers upon that declaration or he does not recover at all. He cannot change or shift his ground in the midst of a trial.' After referring to the pertinent allegation therein, he continued his charge as follows: 'Now in that count the plaintiff admits that it was intended that at that playground during those incidents the defendant or the freshmen should make an effort to get the paddles that the seniors carried with them. The plaintiff can't come into court here now and during the course of the trial say, after having charged that in his declaration, that this defendant or that none of them, none of the freshmen, made any effort to get control of the paddle except this defendant. The plaintiff sets up this case as being one that arose out of the custom of the struggle for the paddles, the plaintiff must stick to that resolution throughout this trial. She cannot change that ground.'

The trial justice also referred to the pertinent allegations in the second count and gave the following instructions relative to the same: 'Now in that count two the plaintiff charges that there was intended to be a struggle for the possession of the paddle and that when a freshman secured possession of the paddle the object was to use it in the manner described in the declaration by paddling or slapping upon the buttocks some of the seniors, or one or more of them. Now the plaintiff here is bound by that allegation. She cannot come here and say that that never happens, the struggle for the paddles, that the freshmen never take them, that the freshmen never applied the paddles to the buttocks of the seniors. She has come here asserting that they do and that's what they gathered upon that campus for. So she is bound by that allegation.'

During the course of their deliberations the jury asked the trial justice for further instructions relative to plaintiff's denial of the allegations in question and he further instructed the jury as follows: 'Now having alleged that in her declaration she cannot deny it on this witness stand, that is what I mean there. The only effect then of her denial would be if you believe it ought to be so operated as to challenge her credibility. You see she sets herself up in opposition to her declaration and I leave it to you to say whether or not that lessens the amount of credibility you would give to her testimony because of that change.'

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