Bascom v. Hoffman

• Decision Date: 07 April 1925
• Docket Number: 36343
• Citation: 203 N.W. 273,199 Iowa 941
• Parties: ALBERT BASCOM, Appellee, v. CLIFFORD HOFFMAN, Appellant
• Court: Iowa Supreme Court

203 N.W. 273

199 Iowa 941

ALBERT BASCOM, Appellee, v. CLIFFORD HOFFMAN, Appellant

No. 36343

Supreme Court of Iowa, Des Moines

April 7, 1925

Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.

ACTION for personal injury as result of alleged assault and battery. From a judgment in favor of the plaintiff, on the verdict of a jury, for $ 6,083, defendant appeals.

Reversed.

Johnson Donnelly & Lynch, for appellant.

John M Redmond, Otto L. Schleuter, and R. S. Milner, for appellee.

ALBERT J. FAVILLE, C. J., and EVANS and ARTHUR, JJ., concur.

OPINION

ALBERT, J.

On the 11th of July, 1921, there arose an altercation between plaintiff and defendant, out of which grew the alleged damages in this case. Such further facts as may be necessary will be stated from time to time as the opinion progresses.

In the trial of the case, over objection of the defendant, the plaintiff was permitted to testify as to the number of persons in his family, the age of each of the children, which was the oldest, and which was the youngest. This testimony was properly objected to, and the ruling of the court permitting the said testimony to be admitted is the first error complained of herein.

We have had this question before us a number of times, and both sides cite Iowa authority to support their contention. One phase of the matter was finally disposed of in the case of Cawley v. Peoples G. & E. Co., 193 Iowa 536, 187 N.W. 591, where we reviewed our former cases, and held that it was not necessarily reversible error to instruct the jury that they might consider the number and ages of the children of the deceased as bearing on the question of his incentive to industry; although this opinion was dissented to by two of our number.

We have carefully read the Cawley case, supra, which seems quite in line with our former pronouncement in Nicoll v. Sweet, 163 Iowa 683, 144 N.W. 615, where, after a very extended review of our own cases and the cases of other states, it was held that, in an action for negligent death, the plaintiff may show the number of children of the deceased as tending to show an incentive for thrift and accumulation of property, the same as it may be shown whether he was married or single. In that case we discussed all our former holdings on this question; but the singular feature of all of our former decisions is that, in each and every instance where we held to this rule of permitting this testimony to be introduced by the plaintiff, it was a case in which an action was brought for the negligent death of the plaintiff's intestate. We have not been able to discover an Iowa case, and neither counsel, in their brief, cites one, in which the plaintiff in the action was living, and was suing for a personal injury, where we held that this line of testimony is admissible. We have intimated, however, by way of analogy, in the cases of State v. Rutledge, 135 Iowa 581, 113 N.W. 461, and State v. Wangler, 151 Iowa 555, 132 N.W. 22, that such testimony was only admissible for the purpose pointed out in the Nicoll case.

In the present case, plaintiff is suing defendant for assault and battery committed on plaintiff by defendant. It is for the injury to the person of the plaintiff herein that he is seeking to recover. Just what aid it would be to the jury to permit the plaintiff to testify as to whether or not he had any children, and if so, the number thereof and the respective ages of each, is something that we are unable to comprehend. The testimony seems to us to be wholly irrelevant and incompetent. It could serve no real purpose in aiding an intelligent mind in reaching the proper conclusion as to how badly the defendant was injured, or the amount that he should be awarded for such injury. It could only serve one purpose, which was evidently the purpose of the plaintiff in offering the testimony, and that was to arouse the passion and sympathy of the jury, and thereby enhance plaintiff's damages. Outside of this state, this question has been disposed of in several jurisdictions. The real logic of the best considered cases and the weight of authority seems to support this view of the matter, and to hold that this testimony is not competent. Mahaney v. St. Louis & H. R. Co., 108 Mo. 191 (18 S.W. 895); City of Kinsley v. Morse, 40 Kan. 577 (20 P. 217); City of Galion v. Lauer, 55 Ohio St. 392 (45 N.E. 1044); Longmore v. Puget Sound Traction L. & P. Co., 78 Wash. 468 (139 P. 191). Further, see the many cases cited in Note 63, 17 Corpus Juris 1036.

The United States Supreme Court had this question before it in the case of Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141, and disposed of it as follows:

"The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children,--a son ten years of age, and three daughters, of the ages, respectively, of fourteen, seventeen, and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children, dependent upon him for support, and consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted: that is, beyond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff's family, it is impossible to determine with absolute certainty; but the reasonable presumption is that it had some influence upon the verdict."

The reasoning in this quotation appeals to us as sound and logical; and, while we fully sustain our former decisions on this question, where the injuries for which suit is brought result in death, we feel that such rule should not apply where the injury on which suit is brought does not result in death. It is apparent, therefore, that the ruling of the district court permitting the introduction of this evidence, over objection, was error.

Plaintiff over objection, was also...