Burns v. Jones

DeCourcy, J. This was an action of tort for an assault committed upon the plaintiff by a servant of the defendant. The only exceptions relate to the admission of evidence. I. The plaintiff’s testimony that he felt humiliated in consequence of the assault and did not sleep any all night was rightly admitted. The insult and indignity inflicted upon him may well have occasioned distress of mind and injury to his feelings more serious than the physical damage, and the plaintiff was entitled to recover reasonable compensation therefor. Smith v. Holcomb, 99 Mass. 552. Meagher v. Driscoll, 99 Mass. 281. Lopes v. Connolly, 210 Mass. 487. 2. The defendant introduced testimony of a regulation of the hotel that no clothing should be changed in any part of the toilet room; but there was no evidence that the plaintiff knew of its existence. In redirect examination the plaintiff was allowed to testify that when he was having his shoes polished and the porter said to him, “You can’t change your stockings here,” he did not understand that the porter was forbidding him to change them inside the toilet room. It does not appear for what purpose this testimony was admitted. Probably the trial judge inferred that the defendant intended to argue in mitigation of damages that the plaintiff provoked the assault by wilfully violating a regulation of the hotel; and deemed it competent for the plaintiff to show that to his mind the somewhat ambiguous notice prohibited the use for the purpose intended of only the public portion of the toilet room. [477] But even assuming that this testimony was incompetent, it was at most immaterial and did not affect the merits of the action. A harmless error of this character, that does not appear to have injuriously affected the substantial rights of the parties, furnishes no ground for the reversal of a verdict that was warranted after a full and fair trial. Wilson v. Fall River Daily Herald Publishing Co. 143 Mass. 581. Scaplen v. Blanchard, 187 Mass. 73. 1 Wig-more on Evidence, § 21. Exceptions overruled.