Opinion
Opinion filed November 5, 1930.
Evidence — Expert Testimony as to X-Ray Picture — Trial — Cross-Examination — Estimate of Party as to Receipts and Expenses before and after Injury — Assault and Battery — Justification — Necessity That Party Claiming Error Show Offered Evidence Was Admissible When Offered — Knowledge by Defendant of Injury Received in Previous Assault by Plaintiff — New Trial — Discretion of Trial Court — Limitation of Review by Supreme Court of Refusal To Set Verdict Aside as Excessive — Insufficiency of Facts To Show Abuse of Discretion in Refusing To Set Aside Verdict.
1. Permitting expert witness to explain to jury what X-ray picture showed, held without error.
2. In action of tort for assault and battery, exclusion on cross-examination of question asked medical expert as to effect use of alcoholic liquor after injury would have on person injured as plaintiff was, held proper, there then being no evidence in case that plaintiff had used liquor since injury, hence question not being within scope of proper cross-examination.
3. Ruling excluding question as to effect of use of intoxicating liquor after injury, by person injured as plaintiff was, proper when made because there was then no evidence in case of such use of liquor, was not rendered erroneous by later evidence showing such use by plaintiff.
4. Plaintiff's estimate of receipts and expenses prior and subsequent to assault and comparison of similar items of each period, held admissible over objection that it was not best evidence.
5. In action of tort for assault and battery, defendant's offer to show that "soon after" trouble in question he had gone to police office and applied for protection, held inadmissible to show fear of plaintiff at time defendant hit him.
6. In such action, it is only knowledge which defendant had at time of assault regarding belligerent character of plaintiff that counts in defendant's justification.
7. In such action, defendant making offer of proof in justification must show that offered evidence is admissible in then present aspect of case.
8. In such action, defendant's offer to show that he had passed blood from his bowels as result of assault made on him by plaintiff a short time before one on which suit was based, held properly excluded, as lacking essential element that defendant discovered this condition before he struck plaintiff.
9. Motion to set aside verdict as excessive is addressed to sound judicial discretion of trial court.
10. On review of trial court's refusal to set aside verdict as excessive, Supreme Court's inquiry is limited to whether lower court's discretion has been abused.
11. In action of tort for assault and battery, refusal of trial court to set aside verdict of $4,000, held not abuse of discretion, where evidence showed brutal assault which involved infliction of several blows on head with a shovel, resulting in fracture of skull and injuries impairing plaintiff's capacity to work.
ACTION OF TORT for assault and battery. Pleas, general issue and self-defense. Trial by jury at the June Term, 1929, Windsor County, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.
Loren R. Pierce and Howard E. Armstrong for the defendant.
Raymond Trainor and Paul Gilioli for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, and WILLCOX, JJ.
This is a tort action for assault and battery, to which reply is made by the general issue and a plea of self-defense. A jury trial resulted in a verdict for the plaintiff. The defendant excepted.
Doctor Boardman, an expert, was allowed to "read" an X-ray picture of the plaintiff's skull to the jury; that is to say, he was allowed to explain to the jury what the X-ray showed. To this the defendant excepted. There was no error in the ruling. The witness was using the picture for demonstrating purposes, and "could rightly point out the things which his practiced eye discovered, so far as they were of significance." Sheldon v. Wright, 80 Vt. 298, 309, 67 A. 807, 811. The claim that the jurors could see for themselves what the X-ray showed is not warranted. The ordinary juror might utterly fail to appreciate the significance of the things appearing on the photograph unless he had the assistance of one trained in such matters. It is not until an X-ray is read by an expert that its full significance can be appreciated and understood. In this respect, it is like a finger-print photograph, which would mean little to a jury until an expert read it. See State v. Lapan, 101 Vt. 124, 133, 141 A. 686.
During the cross-examination of Doctor Boardman, he was asked what effect the subsequent use of alcoholic liquor would have on a person injured as the plaintiff was. Upon objection, this was excluded as not proper cross-examination, and the defendant excepted. There was then no evidence in the case that the plaintiff had used liquor since his injury, and as the case stood the inquiry was not within the scope of proper cross-examination. That such evidence came into the case later on did not affect the quality of the ruling. State v. Lapan, 101 Vt. 124, 132, 141 A. 686.
Subject to the defendant's objection and exception, the plaintiff was allowed to estimate the amount of his receipts and expenses prior to the time the defendant assaulted him, and to compare them with corresponding items since the assault. The objection to this testimony was that the best evidence would be his books showing the accounts. But the admissibility of the testimony was justified by Capital Garage Co. v. Powell, 99 Vt. 12, 16, 130 A. 754.
There was no error in excluding the defendant's offer to show that after the trouble was over he went to the police office and applied for protection. It appears that it was "soon after" the trouble at the stable-yard, but how soon after does not. It was not a part of the res gestae, nor was it so claimed below. It was offered as tending to show the fear that the defendant had of the plaintiff. But it occurred after he had laid his adversary out "cold," as an eye-witness put it, and left him unconscious on the ground. It had no tendency to prove the extent of this fear when he hit him with the shovel.
Remembering that it is only the knowledge which the defendant had at the time of the assault regarding the belligerent character of the plaintiff that counts in his justification, State v. Meader, 47 Vt. 78, 81, and that it was for the defendant to show here that the offered evidence was admissible in the then present aspect of the case, Foote v. Woodworth, 66 Vt. 216, 221, 28 A. 1034; State v. Lapan, 101 Vt. 124. 132, 141 A. 686, it is quite apparent that there was no error in excluding the defendant's offer to show that, as a result of an assault made by the plaintiff upon him a short time before the one on which the suit was based, he passed blood from the bowels. It lacked the essential element that the defendant discovered this condition prior to the time he struck the plaintiff with the shovel. His then existent state of mind could not have been affected by what he discovered later.
The verdict was for $4,000, in which sum, as the record indicates, was included no exemplary damages. The defendant seasonably moved to set aside the verdict as being excessive and on other grounds. The motion was overruled, and the defendant excepted. This motion on all its grounds being addressed to the sound, judicial discretion of the trial court, our consideration of the questions raised by this exception is limited to the inquiry whether that discretion was abused. Dyer v. Lalor, 94 Vt. 103, 114, 109 A. 30; Platt's Admx. v. Shields et al., 96 Vt. 257, 270, 119 A. 520.
The very fact that the trial court has by its ruling on the motion approved the verdict strongly inclines this Court against interfering with it. The verdict seems large, but the plaintiff's evidence, sustained by one or more eye-witnesses, shows a brutal assault which involved the infliction of two or three blows on the head with a long-handled shovel, and which resulted in a fracture of the skull and injuries impairing the plaintiff's capacity to work about and carry on his business. On the record, into which it is unnecessary to go with further particularity, we cannot say that the case made is so exceptional that we can say that the trial court abused its discretion in overruling the defendant's motion.
Judgment affirmed.