Willard v. Norcross
Willard v. Norcross
Opinion of the Court
The suit is for malpractice in the treatment of plaintiff’s wrists. The declaration contains a count charging intentional injury. To prove defendant’s animus, the court received evidence that he treated the plaintiff discourteously after his attendance had ceased. As the case stood, this was error.
The defendant’s connection with the case ended in January, and the incidents testified to occurred later than May. The plaintiff’s statements, as detailed in the exceptions, are substantially these. She met the defendant once on the overpass, and he turned around and faced her, and acted as though he was going to block her way, and she walked right towards him, and he turned around and went off; nothing being said
It is true that evidence having a legitimate tendency to show the defendant’s animus in the matter complained of may be found in things subsequently said and done. Thus, in suits for malicious prosecution, the plaintiff may show measures taken to- give publicity to the commencement of the prosecution, or acts of hostility committed during its pendency. Chambers v. Robinson, 1 Stra. 691; Cooney v. Chase, 81 Mich. 203; Gifford v. Hassam, 50 Vt. 704. So in suits for slander, the plaintiff may show subsequent repetitions of the words declared upon, or the speaking of words of like import, or of words having reference to the subject-matter of the words charged. Cavanaugh v. Austin, 42 Vt. 576; Rea v. Harrington, 58 Vt. 181, 2 Atl. 475; Smith v. Moore, 74 Vt. 81, 52 Atl. 320; Brown v. Barnes, 39 Mich. 211; Garrett v. Dickerson, 19 Md. 418; Kennedy v. Gifford, 19 Wend. 296; Chamberlin v. Vance, 51 Cal. 75. So also in actions for libel, the plaintiff may show a subsequent publication referring to the one in suit, or connecting the plaintiff with it, or repeating the same charge. Knapp v. Fuller, 55 Vt. 311; Austin v. Remington, 46 Conn. 116; Delegall v. Highley, 8. C. & P. 444. Some courts go further, and receive evidence of subsequent distinct and independent defamations. Other courts hold such evidence inadmissible. Mix v. Woodward, 12 Conn.
All the decisions of this Court relied upon by the plaintiff which seem to require consideration are included in the above citations. • A further reference to two of them is desirable. It was held in Knapp v. Fuller, that a certain conversation had with the defendant, in which he manifested a hostile feeling towards the plaintiff, was admissible. In that case the defamatory words themselves afforded evidence of malice, and the conversation shown occurred only a few days after their publication and evidently before a second publication in which the plaintiff w*as connected with the first by name. A conversation corroborative of the malicious import of the publication declared upon, and coming between that and a subsequent affirmance of it, might well be' held admissible. It was said in the opinion in Gifford v. Hassam, that evidence of the defendant’s ill will just before and just after the prosecution was commenced was admissible to show his feeling at the time it was commenced. The acts shown were successive attachments .of the plaintiff’s property, made and procured to be made by the defendant while the prosecution was pending. Here the pendency of the prosecution afforded.a connection between the subsequent acts and the wrong complained of. The defendant’s attempts to burden the plaintiff further during the pendency of a prosecution he had procured, manifestly tended to charge him with malice in procuring it. We find nothing in these cases that sustains the admissibility of the evidence in question.
It is said that exhibitions of ill will occurring before and after the act are equally admissible. But the considerations bearing upon their admissibility are not necessarily the
Evidence of a subsequent manifestation of ill will is not admissible unless it tends to prove the existence of ill will at the time in question. It is clear that there must be some connection between the subsequent occurrence and the prior transaction which it is claimed to> characterize. But a sufficient connection may be found in a variety of circumstances. Subsequent expressions of ill will may often be received in support of some evidence of malice afforded by the transaction itself. Manifestations of ill will occurring after the transaction may be shown in connection with manifestations occurring before, as tending to show a continued* ill will covering the time of the transaction. Subsequent verbal expressions of ill will may themselves serve to connect the ill will with the matter complained of,
We find nothing in the cases to indicate that subsequent unconnected expressions of dislike are admissible as proof that an act in itself lawful was improperly done because of malice. We have here nothing more than an opportunity to do a malicious injury in January, and manifestations of ill will commencing five months later. There is nothing in this that tends to' show that such improper surgical treatment as there may have been was intentional.
The claim of malicious injury was finally waived, but the evidence was prejudicial upon the issues submitted.
The petition for a new trial is not sustained, and is dismissed with costs.
Reference
- Full Case Name
- Hattie Willard v. E. F. Norcross
- Status
- Published