Denton v. Ordway

79 N.W. 271, 108 Iowa 487

• Court: Supreme Court of Iowa
• Decided: May 19, 1899
• Status: Published

Opinion

Ladd, J.

— The husband of the plaintiff was largely indebted to the defendant, and, owing to some trouble, the latter assigned the claims to his son, who obtained judgment for over one thousand three hundred dollars, and also procured an order in proceedings auxiliary to execution, requiring the delivery of certain notes to the clerk of court. Instead of doing this, Denton and his wife, the plaintiff, went to the defendant’s house to make settlement of the indebtedness. The plaintiff testified that when on the porch, and about to enter the defendant’s office, he demanded from the kitchen, where he was reading, “What in hell do you want?” They then turned into a hallway leading to that room, and the husband said, “Well, I have come to pay you what I owe you.” Thereupon the defendant cursed him, declined to settle, and threatened to láw him as long as he had a dollar. The plaintiff then said to her husband, “Oh, come; there is no use trying to settle with a mad man,” and he withdrew from the house,passingtheplaintiff, who did not then start. The defendant thereupon moved towards her, and either struck or grabbed her by the shoulder, and pushed he,r toyyards the door, and using opprobrious language, ordered her out. In turning or reaching for the banister, she sprained her ankle, but walked out to the wagon. She made no outcry, and, though the husband claims to have seen the defendant strike or grab and push his wife, he offered no interference. The defendant admitted ordering them from his house, the use of profane language in anger, but denied having struck, grabbed, pushed, or touched the plaintiff, and he is corroborated by other witnesses.

1 I. In the fourth instruction, the court, among other things, told the jury that “in assessing such damages you will consider and take into account the character and extent of the injuries inflicted upon the plaintiff by reason of such assault, so far as the same has been shown by the evidence, the physical pain and suffering thereby caused and endured by the plaintiff, the length of time she was unable to perform her household duties by reason thereof.” The plaintiff had testified she was unable to work for more than a week after being injured. There was no evidence that she had any business or employment apart from her husband. Under these circumstances the rule announced in Tuttle v. Railway Co., 42 Iowa, 518, and Nichols v. Railway Co., 68 Iowa, 736, obtained, that the jury ought not to have been permitted to take plaintiff’s loss of time into consideration as an element of damages.

2 II. The petition does not allege the injuries to have been permanent. Nevertheless, a physician was allowed to testify, over the objection of the defendant, that as the sprain was the second one to the same ankle, the injury would likely be permanent. The evidence was not pertinent to any issue in the case. As the jury might consider the extent of the injury, and therefore its permanency, under the instruction set out, we think the ruling in receiving this evidence erroneous and prejudicial.

3 III. This was a part of the examination of the plaintiff, over objections to each question: “I will ask you if you are a member of any church? A. I am. Q. What denomination. A. Tbe Baptist. Q. Do yon live in tbe community where yonr neighbors and friends are of tbe same church? A. No, sir. My church is above Bte. None of the members live near.” On what theory this testimony was received does not appear. That her membership of any church or society ought not to be considered in fixing damages is too apparent for discussion. See Railway Co. v. Bush, 101 Ind. 582. Possibly, no prejudice resulted. We call attention, however, to the error that it may be avoided on another trial. We discover no other errors in the record. Because of those pointed out, the judgment is reversed.