Winston v. Terrace

Citations

• 78 Wash. 146
• 138 P. 673
• 1914 Wash. LEXIS 991

Syllabus

<p>Appeal — Review—Pleadings—Amendments. In an action for assault, error cannot be assigned in allowing evidence of consequent ill-health as the result of the assault, without having been pleaded, where there was no claim of surprise; since the supreme court will consider the complaint as amended.</p> <p>Appeal — Harmless Error — Evidence. The general rule is that error in the admission of evidence is cured by its withdrawal.</p> <p>Assault and Battery — Action for Damages — Defenses — General Reputation. In an action for an unprovoked assault, which was admitted by defendant, evidence as to his general reputation is properly excluded.</p> <p>Appeal — -Review—Harmless Error — Evidence. Overruling an improper question on cross-examination is harmless error, where nothing material or prejudicial was elicited by the answer.</p> <p>Same — Impeachment of Witness. The impeachment of a witness upon immaterial statements that she had made to others cannot be assigned as error, where appellant had opened the door to that line of proof.</p> <p>Assault and Battery — Damages—Mental Anguish. In an action for an assault by driving the plaintiff, a woman sixty years of age, out of her home, at the point of a pistol, the plaintiff may recover for mental anguish and injury to her health, where she fainted through fright and became nervous and sick and unable to remain in the neighborhood for two months.</p> <p>Trial — Instructions — Comment on Facts — Assault and Battery. In an action for an assault, by pointing a pistol at the plaintiff, an instruction defining • what constitutes an assault in such cases is not an unlawful comment on the evidence, where the judge was speaking abstractly in the illustration of an assault given, and not to the facts of the particular case, and the jury must have so understood it.</p> <p>Trial — Misconduct of Counsel — Issues. In an action for an assault, error cannot be assigned in that the plaintiff’s counsel referred to the defendant as a “milliona