197 Mass. 39 | Mass. | 1907
This is an action of tort for an assault and battery. The declaration does not state the time and place of the assault. The defendant moved that the plaintiff file specifications in these particulars. Less than two weeks afterwards, without any order of court on the motion, the plaintiff filed a specification as follows: “ And the plaintiff says that the assault declared on by the plaintiff occurred at Boston in the County of Suffolk aforesaid, on or about Friday, November 29,1901.” The defendant’s answer was a general denial. On these pleadings the parties went to trial in October, 1904, and the jury disagreed. At a second trial, which began on October 10, 1906, at the close of the plaintiff’s opening the defendant moved that the words “ or about ” be stricken out of the specification filed by the plaintiff. The plaintiff objected to the allowance of the motion on various grounds, one of which was that he “ did not rely on proving the act as of November 29,1901, but expected to prove that it occurred on another date.” The motion was allowed and the plaintiff excepted.
A motion of the plaintiff, made nearly a year before, to amend her specification by stating the time of the asssult as between November 6 and December 6, 1901, had been denied by another judge. After the allowance of the motion to strike out the words “ or about,” the plaintiff made, in succession, different motions to amend the specifications, one by stating the act as having occurred between November 11 and November 27,1901, another by fixing the time as between November 15 and November 27, 1901, excluding Saturdays and Sundays, and another as either on Friday, November 22, 1901, or Friday, November 29, 1901, and another on Friday, November 22, 1901. Each of these motions was denied on hearing, and to the order upon each the plaintiff excepted.
The plaintiff offered evidence to prove her case in all particulars except as to the date November 29, 1901, and said that she could not prove that the assault was committed on that day. Thereupon a verdict for the defendant was ordered, and the plaintiff excepted.
Because of this error the exceptions are sustained. The denials of the plaintiff’s several motions, made after this erroneous order, are no longer material, as, in the absence of any further order of the court, the plaintiff, at another trial, will not be limited in her proof to November 29. If a motion is hereafter made for an enlargement of the specifications, the decision upon it will be within the discretion of the court. If a motion is made by the defendant for a more definite and limited specification, in that too the court may exercise discretion. Commonwealth v. Giles, 1 Gray, 466, 469. Commonwealth v. Wood, 4 Gray, 11. Blake v. Everett, 1 Allen, 248. Harrington v. Harrington, 107 Mass. 329. But it cannot fix for the plaintiff a day which she says is not in accordance with the truth, and not the day shown by the testimony on which she relies.
Exceptions sustained.