Avery v. Ray

1 Mass. 12

Opinion

Thatcher, J.,

was against admitting the evidence offered—it would be going further than he had ever known.

Sewall, J.,

was also against admitting. Immediate provocations are admitted—but he had never known an instance where the Court had gone further than that.

Sedgwick, J.,

said he should be in favor of admitting evidence of provocation given, in mitigation of damages, upon a liberal scale ; but to admit such evidence where the blood had had time to cool, would be extending the rule so as to render it impossible to say where the Court should stop. In this case it appeared that the assault had been planned with considerable deliberation, and committed without any provocation given by the plaintiff at the time of the assault—he was therefore against admitting.

Strong, J.,

was also against admitting the evidence. He said it was contrary to all rule ; for the Court must know that there was such a story, and whether the same were true or false—these are facts, which can be determined only by the jury. Then, how can the plaintiff be supposed to come prepared to try such facts ?

The physician, in his testimony, having incidentally stated that the plaintiff, while under his care, appeared to be deranged in mind, the counsel for the defendants offered to prove that the plaintiff had practised deception and imposition in the affair, and that this supposed derangement was a mere pretence, his object being to enhance the damages.

[ * 15 ] The Court unanimously ruled that the evidence * offered was inadmissible; and Sedgwick, J., said that what the physician had testified on that point was improper, ought not to have been testified, and the jury ought not to regard it.

Footnotes

•

(a)

It is presumed the reason of the decision is, that the derangement was. if a consequence, so remote a consequence of the wounds and bruises, that not being laid in the declaration, under a per quod, no evidence of derangement ought to have been given ; and therefore it would be impertinent to go into evidence by way of mitigation of damages, as to facts and circumstances which could not be given in evidence in aggravation.