307 Mass. 574 | Mass. | 1940
The jury returned a verdict for the plaintiff in this action of tort to recover damages for an alleged assault, and the defendant excepted to the refusal to grant his motion for a directed verdict.
The plaintiff testified that the defendant visited her while she was confined to a hospital as a result of the assault, which occurred on July 7, 1936, and told her that if she would not give publicity to the matter and would not sue him for damages he would pay her $25 a week during her life; that “she accepted the agreement to pay her $25 a week and
The defendant contends that his defence of accord and satisfaction has been proved, as matter of law, by the testimony of the plaintiff which is binding upon her. In other words, he contends that a finding was required by the plaintiff’s testimony that she accepted the defendant’s agreement itself as an accord and satisfaction of her claim against him.
In determining whether or not there was error in refusing to direct a verdict for the defendant, the plaintiff is entitled to have the evidence viewed in the aspect most favorable to her, and, ordinarily, she is not estopped from relying upon the testimony of other witnesses which is more favorable than her own in establishing the liability of the defendant. Hill v. West End Street Railway, 158 Mass. 458, 459. Whiteacre v. Boston Elevated Railway, 241 Mass. 163. Horneman v. Brown, 286 Mass. 65, 70, 71. Topjian v. Boston Casing Co. Inc. 288 Mass. 167. The rule is of general application. A plaintiff might honestly be mistaken in his narration of the physical facts constituting his cause of action and may properly ask a jury to find as true the facts as set forth in the testimony of the other witnesses. But he has no such right to ask the jury to disbelieve his testimony concerning his knowledge, motives, purposes, emotions or feelings — matters concerning which he alone can have any personal experience or information and upon which he should be able to speak with reasonable assurance of the truth. Testimony of that character is binding upon the party who gives it. Laffey v. Mullen, 275 Mass. 277. Butler v. Graves, 284 Mass. 84, 85. Germaine v. Boston & Albany Railroad, 298 Mass. 501. Ramseyer v. Conlon, 303 Mass. 270. Beebe v. Randall, 304 Mass. 207, 210-211. 9 Wigmore, Evidence (3d ed.) § 2594a.
The evidence that the plaintiff accepted the agreement is not sufficient to show that she accepted it in full satisfaction of her claim. There could be no accord unless the parties first had assented to a contract making the accord, and the mere acceptance of the agreement might properly be construed to mean that she agreed with the defendant upon the terms of the accord. She testified that she considered the assault and battery incident closed as far as she was concerned after she accepted the agreement. If that statement standing alone indicated that her claim was discharged by the agreement, yet it is clear that it did not
Exceptions overruled.