Traver v. Smolik
Traver v. Smolik
Opinion of the Court
delivered the opinion of the Court:
Error is assigned in the admission of a statement made by plaintiff to the witness Brooks on her return to her employer’s house. Witness testified that, when plaintiff returned to the shop from defendant’s house, “she was half crying and sort of limping; ” that she stated to witness, “I am hurt, the man has ■thrown me out.” It was error to admit this statement over the objection of defendant’s counsel. The statement was self-serving, and could only be held admissible on the theory that it was
The admission of this statement was highly prejudicial to defendant. The evidence was very evenly balanced. The testimony of plaintiff alone as to the commission of the alleged assault was denied by both defendant and her butler. The effect of the admission of this statement was to make the witness Brooks a corroborating witness as to the commission of the assault. The rule announced in Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 30 L. ed. 299, 7 Sup. Ct. Rep. 118, applies here: “It is well settled that a reversal will be directed unless it appears, beyond doubt, that the error complained of did not and could not have prejudiced the rights of the parties. Smith v. Shoemaker, 17 Wall. 630, 639, 21 L. ed. 717, 719; Deery v. Cray, 5 Wall. 795, 18 L. ed. 653; Moores v. Citizens’ Nat. Bank, 104 U. S. 625, 630, 26 L. ed. 870, 872; Gilmer v. Higley, 110 U. S. 47, 50, 28 L. ed. 62, 63, 3 Sup. Ct. Rep. 471.”
The second assignment of error goes to the competency of the testimony of the witness Smith, who testified “that in dune, 1910, he was employed byr the Postal Telegraph Company, of
The third assignment of error is to the admission of the testimony of a physician to the effect that plaintiff consulted him about sixteen months after the date of the alleged assault, when “at that time he found no evidences of injuries except a slight impairment in the movement of one shoulder and that said plaintiff complained of pain in her shoulder. Witness further testified that he found a scar on one of plaintiff’s knees. That the condition of her shoulder might have been caused by a blow.” An examination of the record fails to disclose any evidence on the part of plaintiff to the effect that, as the result of the alleged assault, she suffered injuries to her shoulder, or that the scar on her knees resulted from the alleged assault. Neither is there any claim of such injury set out in the declaration. The physician does not presume to say that the injury he found resulted from the assault. Had the hiatris been supplied by the testimony of plaintiff, or witnesses on her behalf, there would still have been a serious question as to the competency of this evidence; but, in the absence of any connection being shown between the injuries alleged to have been received by plaintiff, and the injuries testified to by the physician, the evidence was clearly inadmissible.
The fourth assignment of error is to an instruction by the court that the jury might take into consideration the “pecuniary circumstances of the defendant, and award the plaintiff such damages as will, under all the circumstances of the case, com
Undoubtedly it was error to instruct the jury that the pecuniary circumstances of defendant could be considered in assessing compensatory damages. But were there no other error in the case, this assignment would not be considered, for the reason that proper objection was not made in the court below. After the court had concluded its instructions to the jury, the record discloses the following: “And thereupon the court gave such instructions, which instructions were by the court, without modification or qualification, read to the jury in its charge, to the granting of which said instructions, and each of them, the defendant, by her counsel, then and there duly excepted and prayed the court to note the same upon its minutes, which was done.” Appellate courts look with disfavor upon general exceptions which fail to assign the specific grounds of objection. Here, twro instructions were given involving a series of subjects, all of which, with this single exception, were correct. It is now sought, without opportunity afforded the court below to correct its error, to select a single sentence of the instructions, and predicate reversible error upon it. While a proper exception is always available to a litigant to preserve his rights on appeal, he will not be permitted to convert the right into a deceptive agency to be used, if occasion requires, for the purpose of securing a new trial. It is always incumbent upon counsel to clearly state his objections, and to accurately point out, not only the portion of the instructions objected to, but the specific ground of objection, so that the trial court may have an opportunity to correct the error. Bell v. Sheridan, 21 D. C. 370; De Forest, v. United States, 11 App. D. C. 458; Wheeler v. Sedgwick, 94 U.
We have reviewed all of the errors assigned by counsel for defendant, and they seem to be ample to justify a reversal. The judgment is therefore reversed with costs, and the cause remanded with directions to grant a new trial.
Reversed and, remanded.
Reference
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- Syllabus
- Evidence; Res Gesive; Appeal and Error; Assault; Variance; Damages; Objections and Exceptions; Instructions to Jurx. 1. In an action for an assault alleged to have occurred at the defendant’s house when the plaintiff called to collect a bill, a statement made by the plaintiff to the effect that she was hurt and that a man had thrown her out, made after the plaintiff had walked several blocks and had returned to her employer’s shop, is inadmissible over the objection of the plaintiff, not being part of the res gestee and therefore being a self-serving declaration, and if admitted in evidence the action of the trial court is prejudicial error, especially where the evidence of the parties is evenly balanced. ( following Metropolitan R. Co. v. Collins, 1 App. D. C. 383; and Washington & G. R. Co. v. McLane, 11 App. D. C. 220.) 2. A reyersal will be directed unless it appears beyond doubt that the error complained of did not, and could not, have prejudiced the rights of the parties. 3. In an action for an assault alleged to have been made upon the plaintiff at the defendant’s house when the plaintiff called to collect a bill, testimony that on another and different occasion another person called on the defendant with a package to deliver it and collect therefor, and that on that occasion the package was taken by a servant who returned and said that the defendant would settle the bill later, and that thereupon the servant shut the door in the caller’s face, is inadmissible. 4. Testimony by a physician in an action for assault is inadmissible in behalf of the plaintiff when it is to the effect that upon an examination of the plaintiff, made sixteen months after the alleged assault, ho found evidence of an injury to one of plaintiff’s shoulders and a scar on one of her knees, and when the plaintiff has not testified to having received any such, injuries, and there is no claim for such injuries in her declaration. 5. It is error for the trial court to instruct the jury in an action for assault tiiat the pecuniary circumstances of the defendant may he considered in assessing compensatory damages to the plaintiff. (i. (¡oneral objections by the plaintiff to instructions granted by the trial court at the request of the defendant are insufficient and will not be considered, especially where some of the instructions are correct. 7. Objections to instructions should be clearly stated and the portions of the instructions objected to should be accurately pointed out and the specific ground of objection stated, so that the trial court may have the opportunity to correct the error, if any has been committed. (Following De Forest v. United States, 11 App. D. C. 458.)