1. CARRIERS (§ 380*)-CARRIAGE OF PASSENGERS EJECTION OF PASSENGERS-ACTIONSPLEADING EVIDENCE.

ticket, and on his failing to produce it, ejected him; that a friend thereupon paid the fare, and plaintiff continued his journey; that later plaintiff recovered judgment against defendant before a justice of the peace for the amount so paid. Held, that plaintiff's right to be on the train without producing a ticket or paying his fare not having been expressly adjudicated in the action before the justice, the admission of the former recovery as conclusive evidence that plaintiff was rightfully on the train at the time of his ejectment, and of his right to recovery in the subsequent action, was error.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1153; Justices of the Peace, Dec. Dig. § 130.*]

6. JUDGMENT (§ 948*)-PLEADING-NECESSITY -ESTOPPEL.

A defendant, failing to plead a former judgment between the parties, cannot take advantage of it by way of estoppel, though such judgment is in the case as evidence.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1787; Dec. Dig. § 948.*] 7. EVIDENCE (§ 123*)-RES GESTÆ.

Under a declaration, in an action against a railroad alleging assault and battery and wrongful ejection of a passenger from a train, plaintiff could show that he purchased a ticket In an action against a railroad for wronghaving three coupons, the first entitling him to ride to a fair, the second to attend the fair, and ful ejection of a passenger from a train for the third to return passage; that on his re- alleged nonpayment of fare, testimony that one turn the conductor took up his ticket; that not called as a witness was in the same car with plaintiff, and told the conductor that he thereafter there was a change of conductors; saw that the new conductor refused to accept plain-ticket, was but the narration of a past occurthe former conductor take up plaintiff's tiff's statement that he had already surrenderrence, and was inadmissible as part of the res ed his ticket, and demanded the fare, and on gestæ. plaintiff's refusal to pay it, forcibly ejected him. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1464; Dec. Dig. § 380.*] 2. ASSAULT AND BATTERY (8 24*)-PLEADING -DECLARATION.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 362; Dec. Dig. § 123.*] 8. CARRIERS (§ 382*)-CARRIAGE OF PASSENGERS EJECTION OF PASSENGER FROM TRAIN - DAMAGES - EXEMPLARY DAMAGES - EVIDENCE.

In an action for assault and battery, it is not essential that the declaration state the injury with any inducement of defendant's motive or of the circumstances under which the in-ful jury was committed.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 25, 26; Dec. Dig. § 24.*] 3. TRIAL (§ 59*)-ORDER OF PROOF-DISCRETION OF COURT.

Where under the pleadings certain evidence was admissible at some stage of the trial, the order of its admission was within the discretion of the court.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 139; Dec. Dig. § 59.*]

4. JUDGMENT (§ 725*)-RES JUDICATA-MATTERS CONcluded.

The general rule is that a verdict and judgment is conclusive evidence, between the same parties in a subsequent suit, of all that the jury must have found to warrant the verdict, and no further, and it is not necessary to the conclusiveness that the issue should have been taken on the precise point which it is proposed to controvert in the subsequent suit; it being enough if that point was essential to the former judgment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1255; Dec. Dig. § 725.*]

5. JUSTICES OF THE PEACE (§ 130*)-JUDGMENT -RES JUDICATA-MATTERS CONCLUded.

P. S. 1656, provides that no judgment of a justice, 'where an appeal is not allowed, shall be an estoppel on a question or matters not therein expressly adjudicated, and no right of recovery shall thereby be established on a collateral matter. In an action against a railroad for wrongful ejection of a passenger from a train, it appeared that on plaintiff's surrender of his ticket the conductor failed to give him anything as evidence of his right to a passage; that thereafter a new conductor demanded the

In an action against a railroad for wrongejection of a passenger from a train for alleged nonpayment of fare, testimony that one not called as a witness was in the same car with plaintiff, and told the conductor that he saw the former conductor take up plaintiff's ticket, was inadmissible on the question of exemplary damages, since the disregard of a third person's statement in such circumstances did not tend to show that the ejection of plaintiff was maliciously, wantonly, or recklessly committed. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1489; Dec. Dig. § 382.*] 9. DAMAGES (§ 18*) PROXIMATE CONSEQUENCES.

PERSONAL INJURIES

In an action for personal injuries, only such special damages may be shown as are the natural and proximate, not the necessary, consequences of the act complained of,

[Ed. Note. For other cases, see Damages, Cent. Dig. § 37; Dec. Dig. § 18.*] 10. CARRIERS (§ 382*)-CARRIAGE OF PASSENEJECTION OF PASSENGERS SPECIAL DAMAGES EVIDENCE.

GERS

In an action against a railroad for wrongfully ejecting a passenger from a train and injuring him, evidence that plaintiff in consequence of the injuries was unable to assist his employés in cutting, manufacturing, etc., certain timber he had contracted to purchase, and was compelled to abandon the contract at a great loss, was inadmissible to show special damages, it appearing that the work he was rendered unable to do was but a small part of a business of considerable magnitude, and that the work might have been performed by a competent employé; the loss being more particularly the proximate result of plaintiff's voluntary abandonment of the contract than of the injuries. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1483; Dec. Dig. § 382.*]

11. CARRIERS (§ 384*)—CARRIAGE OF PASSEN- | Lyndonville; that at Newport some changes GERS EJECTION OF PASSENGERS-ACTIONS- were made in the train, and also a change of INSTRUCTIONS-EXEMPLARY DAMAGES.

In an action against a railroad for wrongful ejection of a passenger from a train, an instruction that if the jury found for plaintiff, and that if his ejection was willful and malicious, they might give exemplary damages, was erroneous, as permitting an award of exemplary damages regardless whether defendant was guilty or not of the wrong committed by its servant by directing, participating in, or subsequently approving it.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1500; Dec. Dig. § 384.*]

conductors; that when the conductor south of Newport called upon the plaintiff for his fare, the plaintiff told him he had a ticket from Sherbrooke to Lyndonville and that the conductor north of Newport took it up and retained it, whereupon the conductor told plaintiff he must pay his fare, which he refused to do, or be put off; that when the train stopped at Barton Station, the plaintiff again refusing to pay his fare, the conductor ordered him to leave the train, and as the

Exceptions from Essex County Court; Wil-plaintiff refused to do so, he was forcibly lard W. Miles, Judge.

Trespass for assault and battery by Charles A. Wells against the Boston & Maine Railroad. There was a plea of the general issue, and verdict and judgment for plaintiff, and defendant excepted. Reversed and remanded. Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Howe & Hovey, for plaintiff. Young & Young and Harry Blodgett, for defendant.

ejected. The admission of this evidence was not error. To make out his opening case it was necessary for the plaintiff to prove, not only the assault and battery, but also such facts as in law make the defendant responsible therefor. And it is not essential that the declaration state the injury with any inducement of the defendant's motive or intent, or of the circumstances under which the injury was committed. 1 Chitty, Pl. (14th Am. Ed.) 387. Whether the evidence went beyond what was necessary to the opening case we need not inquire, since under the special pleadings it was all admissible at some stage of the trial, and even though somewhat varied from the regular order, the variance was within the discretion of the court, and it is not manifest that the defendant was put to any disadvantage thereby. State v. Magoon, 50 Vt. 333.

That the plaintiff purchased and had such a ticket was not denied by the defendant. Its evidence, however, tended to show that the conductor north of Newport did not retain the ticket, but punched it, and returned it to the plaintiff; that when the train reached Barton, the plaintiff refusing to produce a ticket, pay his fare, or get off the train, the conductor and a brakeman ejected him from the train, using no more force than was necessary to accomplish that purpose, and that the plaintiff had the same ticket in his possession several days afterwards. It appeared immediately after the plaintiff had been ejected his fare from Newport to Lyndonville was paid to the conductor by a friend of the plaintiff, and that the plaintiff then returned to the same car and rode therein to Lyndonville, on the way paying the friend the amount of the fare so paid by him. It further appeared that subsequently thereto, and before the commencement of this suit, the plaintiff brought his action of assumpsit against the defendant before a justice of the

WATSON, J. The first count of the declaration alleges in detail an assault and battery at Barton, including “and also then and there, with great force and violence, shook and pulled about the plaintiff, and threw and cast the plaintiff out of and from a certain railroad passenger car, and cast and threw [him] down to and upon a certain wooden platform then and there situated," and special damages. Pleas, the general issue, and special in justification that at the time when, etc., the plaintiff, riding in a certain car of defendant's train through the towns of Newport and Barton to Lyndonville, on proper request by the conductor in charge of the train, refused to pay his fare or to produce a ticket as evidence of payment thereof, whereupon by reason thereof, the defendant by its said conductor, using no more force than was necessary, ejected the plaintiff from the car. The plaintiff replied, de injuria. Subject to objection and exception on the ground that the evidence was not admissible under the declaration, the plaintiff was permitted to show that on the morning of September 7, 1905, he purchased a ticket at Lyndonville, having three coupons, the first entitling him to ride over defendant's railroad from there to Sherbrooke, the second to attend the fair at Sherbrooke, and the third to a ride over defendant's railroad from Sherbrooke back to Lyndonville on the same day; that the plaintiff rode to Sherbrooke, surrendering the first coupon, attend-peace, to recover back the money thus paid at ed the fair, surrendering the second coupon, Barton, and such proceedings were had thereand took the train at Sherbrooke late in the in that a judgment was rendered for the afternoon to ride back to Lyndonville; that plaintiff to recover the amount so paid and between Sherbrooke and Newport the con- costs of suit. No appeal therefrom was alductor of the train took up the third coupon, lowable by law. Subject to defendant's obreturning nothing to the plaintiff to show jection and exception, the plaintiff was allow that he had paid his fare from Newport to led to introduce a certified copy of this judg

ment as conclusive evidence that the plaintiff | 539; Campbell v. Consalus, 25 N. Y. 613; was rightfully on the train at the time he King v. Chase, 15 N. H. 9, 41 Am. Dec. 675; was ejected, and also as conclusive of the Kitson v. Farwell, 132 Ill. 327, 23 N. E. 1024; plaintiff's right of recovery in this case. McCravey v. Remson, 19 Ala. 430, 54 Am. The latter question was also raised by excep- Dec. 194. It follows that, both under the tion to the charge. statute and at common law, the admission of the former recovery as conclusive evidence that the plaintiff was rightfully on the train at the time of his ejectment, and of his right of recovery in this action, was error, as was also the charge giving it such conclusive effect.

The judgment in question falls within the purview of the statute which reads: "No judgment of a justice where an appeal is not allowed shall be an estoppel upon a question or matters not therein expressly adjudicated, and no right of recovery shall thereby be established upon a collateral matThe defendant contends that the former reter." P. S. 1656. The general rule is that a covery is a bar to this action, and that since verdict and judgment is conclusive evidence, the plaintiff introduced it in evidence, the between the same parties in a subsequent defendant is entitled to the full benefit theresuit, of whatever it was necessary for the of. It is a sufficient answer to this posijury to find in order to warrant the verdict tion that the defendant cannot take advanin the former action, and no further. Town | tage of the judgment by way of estoppel, he v. Lamphere, 34 Vt. 365. It is not neces- not having pleaded it as such; and the fact sary to the conclusiveness that the issue that it is in the case as evidence does not should have been taken in the former ac- change the rule in this respect. Briggs v. tion upon the precise point which it is pro- Mason, 31 Vt. 433; Poole v. Massachusetts posed to controvert in the subsequent suit. Mut. Acc. Ass'n, 75 Vt. 85, 53 Atl. 331. It is enough if that point was essential to The plaintiff was permitted to introduce the former judgment. 1 Greenl. Ev. § 534. testimony that one Ben Taylor, a person not In other words, every point that was express- called as witness, was in the same car as ly or by necessary implication in issue, which was the plaintiff between Newport and Barmust necessarily have been decided in order ton, and that Taylor told the conductor that to support the judgment, is concluded. he saw the conductor above Newport take Board of S. v. M. P. R. R. Co., 24 Wis. 93, up plaintiff's ticket. It is urged by the plain124. In the former suit the question direct- tiff that the evidence was properly received, ly and distinctly put in issue was the plain- first, as part of the res gestæ; and, secondly, tiff's right to recover of the defendant the as bearing on the question of exemplary money paid to it at Barton for his passage damages. The evidence, however, was not from Newport to Lyndonville. The result admissible on either ground. Not on the depended upon whether the plaintiff had pre- first, since it was but the narration of a viously paid for the same passage, within the past occurrence (1 Greenl. Ev. § 110); nor meaning of the law; that is, whether his on the second, for the disregard of a third ticket to Lyndonville was taken up by the person's statement in such circumstances conductor north of Newport without giving does not tend to show the act of the conhim anything as evidence in lieu of the ticket ductor in ejecting the plaintiff to have been of his right to a passage through. If he had, maliciously, wantonly, or recklessly committhen the money paid at Barton was a second ted. If the evidence had any tendency, it payment for the same thing, and it was held was that the conductor was performing his by the defendant to the plaintiff's use. On duty as required by rule 579, furnished by the other hand, if the plaintiff had not made the defendant to all conductors of its passensuch previous payment, then the money ger trains, and introduced in evidence by paid at Barton was for a valuable considera- the plaintiff, which provides: "The conductor tion, and not recoverable back. See Jerome will not permit any person * * to ride v. Smith, 48 Vt. 230, 21 Am. Rep. 125. The on his train without a ticket or pass, except plaintiff's right to be upon the train when those provided for by rule." ejected, without producing a ticket or something equivalent thereto, or paying his fare, likewise depended on whether such previous payment had been made. Yet this right was not a question expressly adjudicated. It was a collateral matter which can only be inferred by arguing from the judgment. And aside from the statute a judgment is not evidence of any matter which came collaterally in question merely, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment. The Duchess of Kingston's Case, 20 St. Tr. 361, 2 Smith's Lead. Cas. *573; Hopkins v. Lee, 6 Wheat. 109, 5 L. Ed. 218; Lawrence v. Hunt, 10 Wend. (N. Y.) 81, 25 Am. Dec.

As bearing on the question of special damages, and subject to defendant's exception, the plaintiff was permitted to introduce evidence tending to show that at the time of the assault he had a parol contract with the Moose River Lumber Company, whereby he purchased of that company at $8 per 1,000 feet stumpage the standing timber on a certain lot, and that the amount of timber was estimated by the company at 700,000 feet; that the first winter after the assault, and because of the injury resulting therefrom, he could not be around with his men cutting and hauling the logs more than probably haif the time, and could do but little of all kinds of work connected therewith; that because of

upon the provisions of the specifications express- | which this action is based was executed to ly made a part of the contract, as well as upon the bond and contract proper, and it being impossible to determine the question without the specifications, the contract and bond without the specifications were inadmissible for determination of that question.

the government by the contractor as principal and the defendant as surety. The use plaintiff, the Elias Lyman Coal Company, furnished coal to the contractor at the times, in the amounts, and at the prices charged in the plaintiff's specifications, it having been

[Ed. Note. For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*] delivered to the contractor at Fort Ethan Al4. UNITED STATES (§ 67*) CONTRACTORS' BONDS ACTIONS-BURDEN OF PROOF-EX-len while the company was constructing the TENSION OF TIME FOR COMPLETING WORK. buildings named in the contract. Subject to In an action on a building contractor's defendant's objection and exception on the bond, conditioned for the prompt payment by the ground that the coal thus furnished was not contractor for materials furnished him for the work contracted for, for coal furnished the con- "material" within the meaning of the bond tractor in connection with the construction of in suit and of the federal statutes, evidence the buildings, after the expiration of the time was introduced tending to show that the coal fixed by the contract for the completion of the mentioned was furnished to the contractor work, the burden is upon plaintiff to show that an extension of time was granted. at the place, on the dates, and in the amounts specified, for the agreed price charged; that the coal was used in the heating plants and three of the buildings named in the contracts then being constructed by the contractor; that at the time the coal was used work of plastering, laying floors, putting on interior finish, painting, and varnishing was being No evidence was introduced by the plaintiff tending to show that

[Ed. Note.-For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*] 5. UNITED STATES (8 67*) CONTRACTORS' BONDS-ACTIONS QUESTION FOR JURY.

There being no written extension of time, and parol evidence bearing on the question of an extension other than in writing being conflicting, it was a question for the jury.

[Ed. Note. For other cases, see United States, done in said buildings. Cent. Dig. § 50; Dec. Dig. § 67.*]

Exceptions from Chittenden County Court; any other use was made of the coal, and no George M. Powers, Judge.

Action by the United States of America, for use of the Elias Lyman Coal Company, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant excepts. Reversed and remanded. Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

evidence was introduced by the defendant. The same question in effect is raised by exception to the overruling of defendant's motion for a verdict at the close of the evidence. An exception on the same ground was also allowed the defendant to the court's ordering a verdict for the plaintiff.

As before seen, the terms of the contract are that the contractor shall furnish "mate

rials for the construction of" the buildings

Horace H. Chittenden and Max L. Powell, for plaintiff. E. M. Horton and J. E. Cush-named therein, "all in accordance with the man, for defendant.

*

WATSON, J. Chapter 280 of the United States Statutes at Large for 1894 provides: "That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract," etc. Act Aug. 13, 1894, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523).

On March 16, 1903, E. H. Denniston Company entered into such a contract in writing with the government to "furnish all labor and materials necessary for the construction of the following buildings at Fort Ethan Allen," this state, namely, one bachelor officer's quarter, two barracks, and two stables, "all in accordance with the plan and specifications hereto attached and which are made a part of this agreement." Pursuant to the requirements of the statute, the bond on

plans and specifications" attached to and made a part of the agreement. The condition of the bond, stating that part of the contract to be for furnishing "materials necessary for the construction of," etc.-the same language used in the contract- is for the performance of "all and singular the covenants, conditions, and agreements in and by said contract agreed and covenanted by said E. H. Denniston Co. to be observed and performed according to the true intent and meaning of said contract, * and shall promptly make full payments to all persons supplying it labor or materials in the prosecution of the work provided for in said contract," etc. Here are two distinct and separate covenants, the former for the purpose of securing to the government the performance of the contract for the construction of the buildings, and the latter solely for the protection of persons supplying labor and materials in the prosecution of the work. "These covenants are to be read together, and the latter interpreted in the light of the former." United States F. & G. Co. v. United States, 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 242. The same court later said that in construing the latter obligation