Sherman v. Johnson

• Decision Date: 26 February 1886
• Citation: 2 A. 707,58 Vt. 40
• Parties: CHARLES M. SHERMAN v. HOLTON C. JOHNSON AND FRED JOHNSON
• Court: Vermont Supreme Court

2 A. 707

58 Vt. 40

CHARLES M. SHERMAN v. HOLTON C. JOHNSON AND FRED JOHNSON

Supreme Court of Vermont, Rutland County

February 26, 1886

Trespass for an assault and battery, with a count in trespass quare clausum. The plaintiff after the second term filed an amended declaration in four counts. The defendants pleaded separately, the general issue, special pleas, and notice of special matter. These pleas were filed July 15, 1885. On September 12, 1885, the defendants filed a motion that the first and fourth counts of the amended declaration be stricken out, because they were not for the same cause of action as the original declaration, and that the plaintiff be required to elect which of the counts of his original declaration he would go to trial on. The plaintiff thereupon gave notice that he abandoned his third count in the original declaration, and withdrew all claim for damages to his real estate. The court then overruled the motion as to the other branch thereof, and the defendants excepted. Trial by jury September Term, 1885, VEAZEY, J., presiding. The first count in the original declaration was for assaulting and beating the plaintiff; the second count was in trespass quare clausum and for beating the plaintiff; third count was in trespass quare clausum, and for beating the plaintiff and his minor son. The third count also alleged that the plaintiff was compelled to expend $ 200 in curing his said son, and that he lost his labor, etc. In the first of the new counts it was alleged that, on August 25, 1884, the defendants assaulted and beat the plaintiff's minor son; that by reason thereof said son died on the 1st day of December, 1884; that he had been deprived of his said son's services, and that he expended large sums of money to cure his said son. In the second and third of the new counts there were allegations that the defendants assaulted and beat the plaintiff, and threatened to injure his property. The fourth count in the amended declaration was substantially like said first new count, except that it was alleged that the defendants assaulted and beat both the plaintiff and his minor son. The plaintiff claimed, and his evidence tended to show, that while he and his minor son. Lensey R., were at work in his field, the defendants, armed with stones and clubs, came upon them, and beat and wounded them; and, also, what he paid on account of the sickness and death of his son. A prominent issue was whether he died of meningitis caused by the blows received in the affray. The defendants pleaded self-defence and their evidence tended to prove it.

The defendants requested the court to charge: "1. That the withdrawal by the plaintiff of the counts in trespass quare clausum fregit leaves nothing in the case as a ground of recovery, except the charge of assault and battery of the plaintiff; and that no recovery can be had upon the counts which charge an assault upon Lensey R. Sherman, or of an assault and battery of Lensey R. Sherman and the plaintiff jointly; but that this action is confined to the charges of trespass against the person of the plaintiff." "16. If the death of Lensey R. Sherman was caused by the blow received in the affray upon the meadow, and the same resulted from an excess of force, or by the wrongful act of the defendants, no recovery can be had in this action for such pecuniary injury resulting from his death to the plaintiff." Charge of the court, in part: "The plaintiff also claims to recover for the expense of the doctoring and attendance of his son, and for the expense of the medicine he bought for him, funeral expenses, and all those things growing out of the claims of the injury to the son. The total amount, as they figured up, is something like $ 147.00. Probably you remember what the figures were. He also claims to recover for the loss to him of the services of his son until he should attain his majority. He was then, I believe, about nineteen years old, and he was therefore under age, and the father is entitled to services of children until they arrive at their majority. He was at home and helped on the farm, and the kind of services which he rendered, about what he did, has been detailed in the testimony. If you find he was entitled to recover for this, it is for you to say what the plaintiff shall have for the services of his son until he should be twenty-one years old. In this whole claim I believe the plaintiff did not make any claim on account of doctor's bills for himself. All these expenses were in behalf of his son. This whole claim in behalf of the son depends on whether the son's death was caused by the blow, the injury he received in this affray. It is denied by the defendants that he died of this injury, or from a sickness resulting from these injuries, and therefore his sickness and death had nothing to do with this affray. You have heard all the testimony on that point; it has been rather the burden of the testimony of this case."

Reversed and remanded.

W. C Dunton and J. C. Baker, for the defendants.

The court erred in its charge in the following particulars: 1st. In charging that the plaintiff was entitled to recover. (a.) For expenses of medical attendance and the funeral of his son. (b.) For the services of his son until he arrived at the age of 21. 2d. For refusing to charge as requested that no recovery can be had in this action for damages resulting to the plaintiff from the death of Lensey R. Sherman. Green v. R. R. Co. 28 Barb. 9 S.C. 41 N.Y. 294; Hyatt v Adams, 16 Mich. 181; Carey v. Berkshire R. R. Co., and Skinner v....