Botkin v. Cassady

• Decision Date: 14 October 1898
• Citation: 76 N.W. 722,106 Iowa 334
• Parties: BOTKIN v. CASSADY.
• Court: Iowa Supreme Court

106 Iowa 334

76 N.W. 722

BOTKIN

v.CASSADY.

Supreme Court of Iowa.

Oct. 14, 1898.

Appeal from district court, Lyon county; William Hutchinson, Judge.

Plaintiff states her cause of action in substance as follows: That on and for several years prior to October 28, 1893, she was the wife of Robert Botkin, by whom she was on that day in an advanced stage of pregnancy; that on that day the defendant, a stranger to her, knowing her condition, did, negligently, willfully, wrongfully, maliciously, and in an angry and violent manner, when alone with plaintiff, threaten her that if she did not tell him the whereabouts of her husband, who was then absent, or that if she did not write to him and tell him where her husband was, he would cause her husband to be accused of larceny, and convicted thereof, and imprisoned in the penitentiary; that by reason thereof plaintiff was greatly scared, nervous, and depressed in body and mind, and so continued for a long time, and that because thereof she miscarried, on or about the 15th day of November, 1893, and was delivered of a stillborn child, in about the eighth month of development; that because of said facts plaintiff suffered great pain of body and mental anguish, was greatly damaged in her health, and her ability to again bear children was impaired, and she was put to $100 expense for medicines, medical attendance, and nursing. In an amendment she alleges that she has been rendered nervous, generally weaker physically and mentally, her memory injured, and her vision made poorer, as a result of said scare, fright, and miscarriage, wherefor she prays judgment for $10,000. The defendant answered, denying generally; and, upon a trial to a jury, verdict and judgment were rendered in favor of the plaintiff for $1,000. Defendant appeals. Reversed.J. M. Parsons and McMillan & Dunlap, for appellant.

E. Y. Greenleaf, for appellee.

GIVEN, J.

1. The following facts appear without dispute: Prior to October 19, 1893, plaintiff and her husband resided at Little Rock, Iowa, where the defendant also resided, and was engaged in the banking business. Defendant held a chattel mortgage on certain property belonging to Robert Botkin, plaintiff's husband. Robert left for parts unknown, leaving the plaintiff with but two dollars in money. Plaintiff went to the home of her sister, Mrs. Freet, near Lake Park, Iowa. Defendant, not finding the mortgaged property, sued out a warrant for the arrest of Botkin, and on said 28th day of October went to Mr. Freet's home, accompanied by a constable, in search of Botkin. While there, defendant asked for, and was granted, an interview with the plaintiff. They had a conversation in a room by themselves, other persons being in an adjoining room. It was in this interview that the alleged threats are claimed to have been made. Plaintiff was delivered of a stillborn child on November 15th following, in about the eighth month of development.

2. Appellant makes 54 assignments of error, most of which are not sufficiently specific to be entitled, under the rule, to consideration, and many of them are not argued. We will only notice such as, under the rule, we are required to consider.

Appellant argues a number of assignments on rulings in taking the testimony. We have examined these assignments with care, and reach the conclusion that with one exception they were either correct or without prejudice, and are not of sufficient importance to require notice. The exception is this: A Mrs. Adams was examined on behalf of the defendant, and gave important testimony as to statements made by the plaintiff. On cross-examination she was asked by plaintiff's counsel if she was addicted to the use of morphine, to which she answered, “I am not addicted to the use of morphine, and was not at that time.” Plaintiff was called in rebuttal, and asked, “Do you know about Mrs. Adams using morphine or opium while you were there?” to which she answered, “Yes.” She was then asked, “Did she use it regularly?” to which defendant objected as incompetent, immaterial, irrelevant, and not rebuttal. The objection was overruled, and the witness answered, “She took it every night while I was there.” This evidence was manifestly called out on behalf of the plaintiff on the assumption that the use of morphine impairs the intellect, and clouds the memory, and therefore rendered the testimony of Mrs. Adams less reliable. There was no evidence as to the frequency or amount of morphine taken by Mrs. Adams, nor whether taken on prescription of a physician or as a cure for some ailment; neither was there any evidence that the mind or memory of Mrs. Adams had been affected by the use of morphine. The fact alone that she had taken morphine was immaterial, and her denial did not present a ground for impeachment, as a witness cannot be impeached upon an immaterial matter. State v. Maxwell, 42 Iowa, 208. In view of the importance of the testimony of Mrs. Adams, and the claim made by the plaintiff as to the weight to be given thereto because of the...