Holmes v. Sullivan

Practice, Civil, Judge’s charge, Requests, rulings and instructions. Damages, In tort. Upon an exception to the refusal by a judge to give a certain instruction to the jury, the charge of the presiding judge to the jury, if not reported in the bill of exceptions, must be presumed to have been comprehensive and accurate. In an action of tort for an unlawful entry upon the plaintiff’s land and the erecting thereon of a platform and steps deflecting surface water upon the plaintiff’s land, where there was no allegation in the declaration that the defendant acted with gross carelessness of the plaintiff’s right or of mental suffering caused to the plaintiff, and no evidence in the record of such carelessness, it was held, that the judge properly refused to instruct the jury that “The plaintiff is entitled to damages for mental suffering, if the jury find that the defendant acted with gross carelessness of the plaintiff’s rights in the premises.” Whether the ruling asked for as above described was sound in law, was not considered.

Tort for an unlawful entry upon the plaintiff’s land and the building thereon of a platform and steps which caused surface water to be drained upon the land. Writ dated January 18, 1921. In the Superior Court the action was tried before Hammond, J. At the close of the evidence, the plaintiff requested the judge to instruct the jury as follows: “The plaintiff is entitled to damages for mental suffering, if the jury find that the defendant acted with gross carelessness of the plaintiff’s rights in the premises.” The judge refused to instruct the jury as requested. The jury returned a verdict for the plaintiff in the sum of $1; and the plaintiff alleged exceptions.