Biggs v. Seufferlein
Decision Date | 23 February 1914 |
Parties | MRS. ELIZABETH BIGGS, Appellee, v. J. J. SEUFFERLEIN, Appellant |
Court | Iowa Supreme Court |
Appeal from O'Brien District Court.--HON. JOHN F. OLIVER, Judge.
ACTION to recover damages for assault and battery. Verdict and judgment for the plaintiff. Defendant appeals.
Reversed.
Sidney C. Kerberg and T. E. Diamond, for appellant.
C. A Babcock, for appellee.
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: Defendant: "Oh, I don't know, Mrs. Biggs." Plaintiff: "Well, Mr. McFarland, what can I do for you?" McFarland: Plaintiff: 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: McFarland said: Thereupon defendant said, "What will we do?" McFarland said, "We will take the stove." Thereupon the plaintiff said: 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: 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: 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, ...
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