Smith v. Holcomb

99 Mass. 552

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Chapman, C. J.

The language of the award does not import that the arbitrators have come to any conclusion in respect to damages; but that they are unable to do so by reason of disagreement among themselves. They are only able to agree that each party pay “ his own arbitrators ” the sum stated for their services. It is quite unlike the award in Stickles v. Arnold, 1 Gray, 418, and the awards in the other cases there referred to. The arbitrators have not decided the principal matter which was submitted to them, and such an award is no bar to this action. Houston v. Pollard, 9 Met. 164. Fletcher v. Webster, 5 Allen, 566. Estes v. Mansfield, 6 Allen, 69.

The insult and indignity inflicted upon a person by giving him a blow with anger, rudeness or insolence, occasion menta, suffering. In many cases they constitute the principal element of damage. They ought to be regarded as an aggravation of the tort, on the same ground that insult and indignity, offered by the plaintiff to the defendant, which provoked the assault, may be given in evidence in mitigation of the damage. Even where there is no insult or indignity, mental suffering may be a ground of damage, in an action of tort for an injury to the person. Canning v. Williamstown, 1 Cush. 451.

The amendment to the writ ought to have been delivered to the jury with the writ; and, if it was left behind by mistake, it was proper to send it to them. It was not like sending them a letter, as in Sargent v. Roberts, 1 Pick. 337; or a paper which they ought not to have, as in Whitney v. Whitman, 5 Mass. 405, and Alger v. Thompson, 1 Allen, 453. It happens not unfrequently that some paper belonging to the case is accidentally left behind when the jury retire, and to send it to them without remark cannot be regarded as a communication which must be made in the court room. Exceptions overruled.