Townshend v. Townshend
| Decision Date | 20 March 1911 |
| Parties | TOWNSHEND v. TOWNSHEND et al. |
| Court | Vermont Supreme Court |
Exceptions from Windham County Court; Willard W. Miles, Judge.
Action by Edna E. Townshend against George L. Townshend and another. Verdict and judgment for plaintiff, and defendants except. Reversed and remanded.
Argued before ROWELL. C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.
Herbert G. Barber and Frank E. Barber, for plaintiff.
Haskins & Schwenk and R. C. Bacon, for defendants.
To the admission of one of the questions put to the deponent Lamphear, the defendants objected that it was immaterial and irrelevant. But immateriality and irrelevancy alone do not vitiate. In order to do that, the testimony must be such that it might have prejudiced the excepting party in the decision of an issue in the case, and the answer elicited by the question was not of that character. Boutelle v. Westchester Fire Insurance Co., 51 Vt. 4, 31 Am. Rep. 666.
The same may be said of the answers elicited by the two questions objected to in Perkins' deposition, though no ground of objection was stated.
Another question and answer in Lamphear's deposition were objected to, but their admission was not excepted to, so the objection cannot be considered.
To the admission of the parts of divers depositions offered by the plaintiff, tending to show impairment of her health, attributed by her to the wrongful act of the defendants complained of, the defendants objected that, "in actions of this kind, damages to a person's health are not recoverable," and excepted. This objection is not made now, but, instead, it is objected that such damages are special, and not recoverable unless specially declared for, which they are not here. But this change cannot be made in this court, for, when specific objections are made below, the excepting party is confined to them here. Massucco v. Tomassi, 80 Vt. 186, 192, 67 Atl. 551.
In this connection the defendants argue their exception to the charge that the plaintiff could not recover for injury to her health, if any, by reason of the wrongful act of the defendants. But, as no ground was stated for this exception, the court below had a right to suppose, and naturally would suppose, that the defendants had in mind the same objection to the charge that they made to the admission of the testimony on the subject of the charge, and we will presume that such was the case, if necessary, to save the judgment, which we do not intimate.
A witness called by the plaintiff testified subject to objection and exception, no ground of objection being stated nor required, that one time when she saw the plaintiff at her mother's the plaintiff's hip was bruised and black and blue, and that the plaintiff told her how she received the injury. The exceptions state that there was no evidence in any way connecting either of the defendants nor the plaintiff's husband with the injury, nor any explaining how it was caused. This shows affirmatively that there was no such evidence in the case at the time the testimony was received, and that none came in afterwards. If, therefore, the admissibility of the testimony depended upon connecting the defendants with the injury, it was not admissible without an offer to connect them, and there was none. That the testimony was not admissible per se is clear. And it is not conceivable how it could be made admissible without connecting the defendants with it in some assignable way, which was not done. Consequently, unless the want of specific ground for the objection is fatal to it. the testimony was not admissible; the rule being that to assign legal error in the admission of testimony it must affirmatively appear that when received it was not admissible without an offer to introduce evidence to make it so. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 253, 24 Atl. 253; Foote v. Woodworth, GO Vt. 216, 28 Atl. 1034. As to want of specific objection, the general rule is that objections must be such as to indicate the precise point that the court is asked to decide. But this rule has its exceptions, and one is, when the evidence offered cannot be material nor relevant in any state of the case, and that is apparent on the face of the question or the offer, a general objection for immateriality or irrelevancy is sufficiently specific. Herrick v. Town of Holland, 83 Vt. 502, 77 Atl. 6. Like unto this is the rule laid down in Bartlett v. Cabot, 54 Vt. 242. There the objection to the...
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