Atkins v. Gladwish
| Citation | 44 N.W. 37,27 Neb. 841 |
| Parties | ALDEN B. ATKINS v. HELEN C. GLADWISH |
| Decision Date | 13 November 1889 |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Johnson county. Tried below before APPELGET, J.
AFFIRMED.
J. Hall Hitchcock, and E. W. Thomas, for plaintiff in error:
The petition was fatally defective in alleging an assault merely and not traversible facts. (1 Hilliard on Torts [3d Ed.] 179; Stivers v. Baker, 9 S.W. [Ky.], 491; B. & M. R. Co. v. Kearney County, 17 Neb. 515; Thomson v Stetson, 15 Id., 112; O'Donohue v. Hendrix, 13 Id., 257; Farrar v. Triplett, 7 Id., 240; Bell v. Sherer, 12 Id., 409.) As to the ninth instruction: Buffalo County v. Van Sickle, 16 Neb 363; Blanchard v. Pratt, 37 Ill. 246; Yundt v. Hartrunft, 41 Ill. 10; Goeing v. Outhouse, 95 Ill. 347; Crabtree v. Hagenbaugh, 25 Ill. 240; McCraney v. Crandall, 1 Ia., 117; Wharton, Ev., secs. 412, 1080; 86 Am. Dec., 331, N.; Pease v. Smith, 61 N.Y. 483; Nelson v. Voree, 55 Ind. 458; Mack v. State, 48 Wis. 286; Sta'e v. McCartney, 17 Minn. 64; Schuck v. Hagar, 24 Minn. 39.) The eighth instruction must have misled the jury. (Sacketts, Instructions, p. 19; 2 Thompson on Trials, sec. 2295; Bradley v. Coolbaugh, 91 Ill. 148; Smathers v. State, 46 Ind. 447; Paine v. Kohl, 14 Neb. 581.) The tesmony as to the feud in the district should have been admitted. (Jacobs v. Shorey, 48 N.H. 100; Drew v. Wood, 6 Fost. [N. H.], 363. As to misconduct of plaintiff's attorney: Bolar v. Williams, 14 Neb. 388; Cropsey v. Averill, 8 Neb. 160; Fitzgerald v. Fitzgerald, 16 Neb. 415; Carr v. State, 23 Neb. 761; Smith v. People, 8 Colo. 457.
Lamb, Ricketts & Wilson, and A. E. Howard, for defendant in error:
By pleading to the petition, the right to have it made more definite and certain was waived. (Fritz v. Grosnicklaus, 20 Neb. 413; Bell v. Sherer, 12 Id., 409.) The objection should have been in the form of a demurrer. (Stivers v. Baker, 9 S.W. [Ky.], 491; Roberts v. Taylor, 19 Neb. 188.) As to the ninth instruction: Dell v. Oppenheimer, 9 Neb. 457; Gandy v. Pool, 14 Id., 101; State v. Shelledy, 8 Ia., 489; Minick v. People, 8 Colo., 452; Liddy v. R. Co., 40 Mo. 511; State v. Thomas, 78 Id., 327; State v. Gee, 85 Id., 647; James v. Mickey, 2 S. E. Rep, 130; Thompson on Trials, secs. 2423-5; Post v. Garrow, 18 Neb. 688; R. V. R. Co. v. Fink, 18 Id., 93; B. & M. R. Co. v. Schluntz, 14 Id., 425; S. C. R. Co. v. Brown, 13 Id., 317; People v. Righetti, 66 Cal. 185. As to the eighth instruction: Matthewson v. Burr, 6 Neb. 320;Parrish v. State, 14 Neb. 67; R. Co. v. Finlayson, 16 Id., 584; Gray v. Farmer, 19 Id., 71. The alleged misconduct of counsel was not sanctioned by any act of the trial court and cannot be complained of here. (Bradshaw v. State, 17 Neb. 147; McLain v. State, 18 Id., 154; 1 Thompson on Trials, sec. 962, and cases cited.) The damages are not excessive. (Cf. Craker v. R. Co., 36 Wis. 679.) Two juries have passed on the evidence and the litigation should not be prolonged. (Dunbar v. Briggs, 18 Neb. 94.)
The plaintiff sued the defendant in the court below on the complaint that on November 9, 1886, while she was alone in her school room where she was teaching, at the village of Smartville, in Johnson county--her school room was situate so remote from any house that alarm could not be given-and while so pursuing her duties the defendant, without her knowledge, came to her school room and did then and there assault her with foul and indecent purpose to do violence to her person, and by force and intimidation to criminally know her; that she was greatly alarmed and by reason thereof she suffered and still suffers great mental anguish, humiliation, and bodily pain, to her damage in the sum of $ 10,000; with prayer for judgment.
The defendant's answer was a general denial.
At a second trial in the court below, on May 16, 1889, the first having been reversed in this court on error (25 Neb. 390), the defendant moved to withdraw his answer, with a rule on the plaintiff to make her petition more definite and certain, which was denied by the court unless the defendant agreed to go to trial the following morning, to which the defendant excepted on the record.
There was a trial to a jury with verdict for the plaintiff of $ 500, to which the defendant excepted, with motion for a new trial, which, upon argument, was overruled and judgment was entered upon the verdict.
The defendant brings the cause again to this court on the following errors:
I. In refusing to compel plaintiff to make her petition specific and definite by stating the facts constituting the assault.
II. In admitting any testimony under the petition and in overruling the demurrer.
III. The petition was too vague and indefinite to set-out a cause of action.
IV. In overruling the motion for nonsuit filed immediately after plaintiff's evidence was introduced.
V. In giving to the jury instructions asked by plaintiff, paragraphs 1, 2, 3, 4, 5, 6, 8, and 9.
VI. And instructing the jury that "the intent with which the alleged assault was committed was important as showing the aggravated character of the injury."
VII. And in instructing the jury that "if they believed that any witness had knowingly sworn falsely to any material matter, that alone would justify the jury in entirely disregarding the testimony of such witness."
VIII. In refusing to give instructions asked by defendant in paragraphs 1 and 2.
IX. In giving instructions by the court, 1, 4, and 5.
X. For errors of law excepted to on the trial.
XI. For excessive verdict, not supported by evidence, and given under the influence of passion and prejudice.
XII. In sustaining the objections of plaintiff's attorney to questions asked of defendant by his attorney as to alleged facts testified by plaintiff, and as to truth or falsity of her allegations, and asking him to tell the truth touching such charge.
XIII. In refusing to allow defendant to prove that there was quarreling and dissension in the school district, and that the parents of witnesses who testified for the plaintiff entertained feelings of hostility against the defendant which influenced the witnesses.
XIV. In not sustaining the objection to the evidence offered by the plaintiff on rebuttal, and permitting evidence then to be given that should have been given, if at all, on the examination in chief, and tending to contradict evidence drawn from defendant's witnesses by cross-examination by plaintiff's attorney.
XV. On account of the misconduct of plaintiff's attorney in stating to the jury in his closing address that the case had once been tried and a jury had found him guilty of the charge.
XVI. In overruling the motion for a new trial.
The first error assigned is that the court erred in refusing the application of the defendant for leave to withdraw his answer and present a motion for an order requiring the plaintiff to make her petition more definite and certain. Except upon the condition that the defendant would agree to be ready for trial on the following morning, the application was denied.
This application was made on the 16th day of May, 1889. It appears that issue was joined in the case on the 28th day of April, 1887. Then followed a trial and judgment in the district court, a writ of error trial and judgment of reversal in the supreme court, and a mandate to the district court. The term of the said court began on the 15th day of May; the said application of the defendant was made on the second day of the term, and upon the fifth regular term of the court after the joining of the issue in the case.
It cannot be denied as a rule of pleading that by answering to the merits of a petition a defendant thereby waives all objections to its form, nor can the equally well established rule be questioned that a pleading once filed can only be withdrawn upon leave of the court. Such leave cannot be claimed as a matter of right, by any suitor, but will be granted ex gratia, or denied, in the discretion of the court. It is true that the discretion here spoken of is a judicial and not an arbitrary one. Its use will not be controlled, but its abuse will be corrected by an appellate court. There had been a trial of the case at bar on the merits, the plaintiff had given her evidence in which she had detailed the facts and circumstances of the alleged assault, her evidence had gone into a bill of exceptions, and had been of record in both courts for a year. The pleadings which it was sought to unsettle had been of record for two years. Under these circumstances the court was asked to extend this favor. Had it granted it unconditionally, it would have been a doubtful, if not a dangerous, exercise of discretion, but to grant it on condition that the plaintiff would not thereby lose a term of court, was certainly within a reasonable and proper discretion.
The second assignment is that the court erred in admitting any evidence under the petition. This point is partly discussed in the brief under the first assignment as well as under the second. The points of law stated in maximic form by plaintiff in error in the brief will not be questioned amongst others that "if a petition fail to state a cause of action it will not support a judgment," and "if the facts stated in the petition do not constitute a cause of action, filing an answer by the defendant is not a waiver of such defect." But while I am of the opinion that the petition now under consideration was originally subject to a motion to make it more definite and certain, and probably to one to strike certain words from it, as irrelevant matter, yet that all of its defects are of that character which is cured or waived by being answered; or, as was formerly expressed, "by pleading over." The words of the petition, "did then...
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