Hubbard v. Perlie

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. We are of the opinion that there was no error in permitting the introduction of the testimony tending to show medical treatment, after the institution of her suit under the declaration. Where the declaration is sufficient, damages occurring as the result of the injuries- received down to the time of trial may be recovered now usually. The strictness of earlier rules in that regard does not now generally prevail. Unquestionably the pleadings should give the defendant some notice of the claims against which he is called to defend; but liberal effect is given thereto. The declaration in this case is inartificial, and at first glance would seem to warrant the inference that the damages are confined to the period between the commission of the assault and the date of filing; but we think that the subsequent allegation that the pain and expense still continue to exist and cause expense are sufficient to extend the scope of the recovery. Washington & G. R. Co. v. Patterson, 9 App. D. C. 423, 434; Ehrgott v. New York, 96 N. Y. 264, 277, 48 Am. Rep. 622; West Chicago Street R. Co. v. McCallum, 169 Ill. 240, 243, 48 N. E. 424. An amendment of the declaration, when the objection was made, could have removed all possible ground of objection. 2. The statement of the plaintiff, that the ailment of the spine was the result of her injuries, was not in the nature of an opinion, but rather ail incidental statement of fact; and we are not prepared to say that it was error to admit it, under all the circumstances. [483] 8. Several exceptions .were taken to the charge of the court, none of which appear to us to be tenable. With a correct definition of assault and battery, the question whether one had in fact been committed by the defendant was left to the determination of the jury, together with the ascertainment of its results. There was no evidence tending to show that the plaintiff had committed an assault upon the defendant or his wife that would justify the laying of violent hands upon her, and there was no error in so instructing the jury, as matter of law. There was no error in charging the jury that the plaintiff had the right, under the defendant’s own evidence, to remove her furniture in a quiet and peaceable manner. She was admitted to the house without objection, on the ground that the defendant was absent. It appears that defendant was readily reached by telephone. Part of the furniture had been taken out in a quiet and peaceable manner, and there is no evidence that the table she was about to remove when he entered, and at the time of the alleged assault, was not her property, which she had the right to take away. There is no doubt unfriendly feeling between the parties existed. Grant that plaintiff’s conduct and remarks to defendant’s wife may not have been altogether what they should have been, for he says that she was abusing, that is to say, not talking civilly to his wife, yet there was nothing to justify the violence with which he is charged. And whether or not he used such violence was left to the determination of the jury. In laying down the measure of damages, the jury were limited to the consideration of the pain and suffering of the plaintiff, and such expense as was necessarily caused thereby, between the time of the alleged assault and the time of trial. No recovery for future damages was permitted. A part of the charge recites: “There is no testimony going to show that she was requested not to come there unless he was present, but upon that there is a conflict of testimony, and that question is for you to determine, to find if he made the request.” It is dpparent that the insertion of the word “no” in this paragraph is a clerical error, probably of the stenographer, from what follows ; and it is clear that the jury could not have been misled by [484] it. The practice pursued iu this case of noting exceptions to certain paragraphs of the charge indicated by letters, “A,” “B,” etc., on the margin, and thereafter printing the same in capital letters, is one not to be commended. Had not the exceptions also contained a reasonably sufficient statement of the grounds thereof without resort to marginal notes and capital type, they would not have been considered. 4.' Fourteen special instructions were prayed on behalf of the defendant, and errors have been assigned on their refusal. Of these it is sufficient to say that some were clearly erroneous conceptions of the law; others had no application to the evidence, and such as had are embodied in the general charge. Finding no reversible error in the proceedings on the trial, the judgment will be affirmed with costs. It is so ordered. Affirmed.