Bethel v. Otis

• Decision Date: 13 December 1894
• Citation: 92 Iowa 502,61 N.W. 200
• Parties: BETHEL v. OTIS ET AL.
• Court: Iowa Supreme Court

92 Iowa 502

61 N.W. 200

BETHEL

v.OTIS ET AL.

Supreme Court of Iowa.

Dec. 13, 1894.

Appeal from district court, Ida county; John R. Caldwell, Judge.

Appellant states his cause of action as follows: “That on or about the 17th day of November, 1892, while he was engaged in his said vocation (as a printer), the defendants injured and dangerously wounded him by the unlawful, negligent, and reckless handling and discharge of a dangerous weapon, to wit, a gun, and from such injury and wound he suffered great pain of body and mind.” He asks to recover damages in the several particulars stated. Defendants answered jointly, denying “each and every allegation in said petition contained.” The case was tried to a jury, and a verdict returned in favor of the plaintiff, against both defendants, in the sum of $700. Defendants' motion for new trial being overruled, judgment was entered on the verdict, from which judgment the defendant W. E. Otis appeals. Reversed.J. C. Walters and Shortley & Harpel, for appellant.

Homer S. Bradshaw, for appellee.

GIVEN, J.

1. The question to be determined will be better understood by noticing the following facts, which are undisputed in the evidence: The defendants, husband and wife, occupied a building in Ida Grove as a storeroom and dwelling. The building fronted on Second street, the front room being used as a store, and the room in the rear thereof for dwelling purposes. In rear of and adjoining the living room was a shed, with double doors in the rear end, and near to the left-hand corner as you face the rear. At the time of the occurrence complained of, one of these doors stood entirely open, and the other partially so. The rear door in the living room opened into this shed nearly opposite the double doors. In the rear of this shed, and some distance from it, on the line of the alley, stood a coal shed covering about 14 feet of the rear of the lot on this alley line, to the right of the said double rear doors. On the opposite side of the alley stood the printing office in which plaintiff was employed, with windows on the alley side, one or more of which were opposite the open space in the rear of the lot occupied by defendants. A day or two before the accident, appellant procured a rifle, for the purpose of killing a rat that was annoying him in the rear of his premises. Between 9 and 10 o'clock on the day of the accident, appellant, in the presence of his wife and a neighbor lady then in the living room, picked up the rifle from where it stood, and asked the neighbor if she would like to shoot the gun. It does not appear what her answer was, as that was excluded on plaintiff's objection. It does appear that Mrs. Otis took the gun, and, standing in or near the rear door of the living room, pointed to the hinge on the lower part of the coal-house door; that appellant said to her, “Shoot at that hinge.” Instead of that she pulled up the gun, “and says, ‘I am going shoot at the crosspiece on the door,’ ” and immediately fired the gun. The bullet passed through the plank in the door, across the open space and alley in the rear of the lot, through the glass in the window in the printing office near to which plaintiff was at work, and lodged in his body, inflicting a painful and serious wound, in consequence of which he has unquestionably suffered damage.

2. It will be observed that the plaintiff, in his petition, rests his right to recover against both defendants solely upon the ground that both were negligent. He does not seek to charge appellant as husband with the negligence of his wife, nor to charge him because of his presence, and the presumption that arose therefrom, and from his relation as husband, that he coerced or influenced his wife to do the negligent act. The court, following the petition, states the issue as follows: “The issue presented is, were the defendants, Walter E. Otis and Lena M. Otis, or either of them, at the time and place charged, and in the act charged, negligent?” Among other instructions, the court gave the following: “(3) If the injuries were caused by the negligence...