HAMSY v. MUDARRI

Evidence, Relevancy and materiality, As to habits. At the trial of an action for assault and battery the evidence offered by the plaintiff tended to establish an unprovoked assault upon him by the defendant and the plaintiff denied in cross-examination that at the time of the assault he was under the influence of intoxicating liquor or ever had drunk any in his life, and in this his testimony was corroborated. The defendant's evidence tended to establish that he did not assault the plaintiff but that the plaintiff's injuries resulted from his being intoxicated, and he offered evidence, which was excluded, tending to show that the plaintiff was and for a long time had been a drinking man and that he frequently was drunk. Held, that the evidence was excluded rightly.

SHELDON, J.

The evidence offered by the defendant to show the plaintiff's habits of intoxication was properly excluded. It had no tendency to show that the plaintiff was drunk at the time of the assault. Nor was it competent to contradict the testimony of the plaintiff on cross-examination, or that given by the other witnesses apparently without objection, but whether on direct or cross-examination does not appear. The case is governed by Carr v. West End Street Railway, 163 Mass. 360.

Exceptions overruled.