Biggs v. Seufferlein

• Decision Date: 23 February 1914
• Citation: 145 N.W. 507,164 Iowa 241
• Parties: BIGGS v. SEUFFERLEIN.
• Court: Iowa Supreme Court

164 Iowa 241

145 N.W. 507

BIGGS

v.SEUFFERLEIN.

Supreme Court of Iowa.

Feb. 23, 1914.

Appeal from District Court, O'Brien County; John F. Oliver, Judge.

Action to recover damages for assault and battery. Verdict and judgment for the plaintiff. Defendant appeals. Reversed.Sidney C. Kerberg, of Audubon, and T. E. Diamond, of Sheldon, for appellant.

C. A. Babcock, of Sheldon, for appellee.

GAYNOR, J.

The facts upon which plaintiff predicates her right to recover, as stated in her petition, are that on or about the 25th day of January, 1911, this defendant went to her house in Sanborn, Iowa, and then and there willfully and maliciously committed an assault and battery upon her by taking and grabbing hold of her wrists and arms, and jerking and pulling her about the house, whereby she sustained personal injuries which she estimates at $2,000. The defendant pleaded a general denial. There was a trial to a jury and a verdict rendered for the plaintiff. Judgment being entered upon the verdict, the defendant appeals.

There was evidence tending to show the following facts:

That during the month of August, 1910, the firm of Kerberg & McFarland, a copartnership, were engaged in the retail hardware business in the town of Sanborn. Plaintiff was engaged in the business of conducting a boarding house in the same town. On the 29th day of August, 1910, the plaintiff hired from Kerberg & McFarland a Majestic range, and took possession of the same under the following contract: “This agreement witnesseth: That I have hired from Kerberg & McFarland, of Sanborn, the following described articles of Majestic range, upon the terms named herein, to wit: One Majestic range, No. 8142. In consideration of said hiring of said range, I agree to pay said Kerberg & McFarland at their store in said Sanborn, Iowa, the following named sums at the dates stated: $15.00 on September 25, 1910. $15.00 on October 25, 1910. $15.00 on November 25, 1910. $15.00 on December 25, 1910. $ Bal. on January 25, 1911. $ Bal. on ...... 1911. $ Bal. on ...... 1911. $ Bal. on ...... 1911. Together with interest at the rate of 8 per cent. per annum from date hereof until all said sums are fully paid. Upon failure to pay any of said sums, the payments that have been made shall be forfeited to said Kerberg & McFarland, and all the said range shall be by me restored to them, and I agree that they may without process of law take possession of said range and for that purpose they may enter any of my premises and remove the same therefrom, and I hereby waive any trespass or right of action against them for damages by reason of any such entry and removal. I further agree that in case of default on my part in carrying out any of the several agreements herein named, I will pay any balance that may remain of the sums above mentioned after the goods once returned to said Kerberg & McFarland have been sold. That such sale may be private or at public auction, and if the proceeds shall amount to more than the balance due said Kerberg & McFarland and costs, then such surplus shall be turned over to me. I will also pay all reasonable costs and expenses and attorneys' fees that the said Kerberg & McFarland may be put to, to recover the said range and enforce this lease; that I will not in any manner dispose of any of the said articles of range nor will I remove them or any part thereof, from the place they are to be kept as is hereinafter designated, without the written consent of said Kerberg & McFarland until I have acquired title to the same as hereinafter provided; that title to same shall remain in said Kerberg & McFarland until the sums herein specified are fully paid, that the said range shall be used by me only at my residence in Sanborn, Iowa, and that I will keep the same in as good repair as when I get them, except the wear and tear that may result from reasonably careful use. But upon payment of all the sums therein specified, then, upon making the last payment, the said Kerberg & McFarland are to convey said range to me by bill of sale or by surrender to me of this lease.” Prior to the happening of the matters complained of, and on the dates herein stated, the plaintiff paid, upon said range, the following sums: September 28th, cash, $10. October 21st, $4. November 4th, $8. December 9th, $10.

That the plaintiff failed to make the payments as required in said contract. That there was due and unpaid on said contract, on the 25th of January, 1911, $38. That prior to said date, the said firm had repeatedly requested plaintiff to make payments as required under the terms of the written contract, and, though she frequently promised to do so, made no other payments than as above set forth. That just before the happening of the matters complained of, the said firm had learned that plaintiff had broken up her boarding house, and intended to leave Sanborn, and that she was largely indebted to certain persons in the town. That on the 25th day of January, the time when it is claimed this assault was made, McFarland, together with this defendant, who was marshal of the town, went to the house of the plaintiff, and the following conversation took place: Plaintiff: “Well, Mr. Marshal, you seem to be paying me considerable attention, making several calls on me. I must be an awfully bad woman.” Defendant: “Oh, I don't know, Mrs. Biggs.” Plaintiff: “Well, Mr. McFarland, what can I do for you?” McFarland: “Mrs. Biggs, I thought I would come down. I understand you are going to quit your boarding house, and see what you are going to do on the stove.” Plaintiff: “The stove is yours. Go and take it.” McFarland: “You mean that, do you, Mrs. Biggs?” Plaintiff: “Yes, sir.” Thereupon, McFarland went to the telephone in the middle room of the house and called up the store and told his partner to send some one down with tools and a dray. That, while he was there, the defendant went into the kitchen and pulled the stove out from the wall and took the pipe down. That, after he got through, McFarland went into the kitchen and took off the first section of the top of the stove and carried it out into the yard. That, at this time, the man whom he had called over the telephone arrived and immediately went to take off the towel roll that runs along the front of the stove. This was done in order to get the stove through the door. About this time, plaintiff said: “I have changed my mind. You cannot take the stove.” McFarland said: “Well, Mrs. Biggs, guess we will take it anyway. I have it in my possession and will take it.” Thereupon defendant said, “What will we do?” McFarland said, “We will take the stove.” Thereupon the plaintiff said: “McFarland, if you were halfway decent, I would have paid you for the stove. I got $140 right in the house, but I will never pay you another damn cent on the stove. Take the damn thing out of here. It was never any good.” Thereupon McFarland and the defendant and the hired man proceeded to carry out some more of the loose parts, and, while the hired man was trying to get the door off, plaintiff came up and said: “You will not take the stove. If you take it, you will take it over my dead body.” Thereupon she jumped up and sat upon the reservoir on the stove. At that time, all the top of the stove had been taken off, and they were still working on the door. Then the defendant says, “Mac (meaning McFarland), don't you think it will go through the door?” McFarland said, “Well, we can try it.” Then the defendant said, “Mrs. Biggs, you will please get off of the stove.” She said: “I will not get off of the stove, and don't you lay your hands on me. If you take this stove, you will take it over my dead body.” The defendant said, “I guess it isn't as bad as that, Mrs. Biggs,” and he reached up and took hold of her and pulled her off the stove. Her feet were about six or eight inches from the floor, and she lit on her feet. Then she grabbed a coffee pot and hit the defendant over the head with it and called him certain names, and said she would shoot his brains out. After removing her from the stove, the defendant did not lay his hands on her or touch her, but said, with reference to her threat, “Now, Mrs. Biggs, I advise you not to do anything of that kind, for that won't do.” Thereupon she went to the phone and called for her husband, who was at the roundhouse. They loaded the stove on the dray and went away.

The defendant's testimony tended to establish, substantially, the above facts. The plaintiff's testimony tended to show that she denied the right of McFarland and this defendant, at all times, to take the stove. Told them that they could not take it unless they had papers for that purpose; that she thereupon got up and sat upon the stove, and the defendant said, “If you don't get off that stove, I will take you off.” She says, “He took me by both hands and pulled me off the range, and then there was a fight. When he pulled me off, I got back on, and he pulled me off again. I got on the third time, and he pulled me off. I grabbed the coffee pot and struck him with it, and said: ‘If I cannot get you out one way, I will get you out another. If I had a gun, I would blow your head off.’ I started to go to the telephone. Defendant followed me. He took me by the arms and pulled me the length of the sitting room and then let me go. Called me a damn bitch. When he got to the door, he threw his elbow back and struck me. Finally, I got back to the telephone, and defendant went and helped McFarland and the hired man to take the range out. When he pulled me off the stove, I lit on my feet and stayed on my feet. When I got down, I was so mad I don't know whether I was weak when...