Bradshaw v. Frazier
| Decision Date | 13 April 1901 |
| Citation | 85 N.W. 752,113 Iowa 579 |
| Parties | C. S. BRADSHAW, Administrator, Appellant, v. J. M. FRAZIER |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. THOMAS F. STEVENSON, Judge.
ACTION at law to recover damages for an abuse of legal process alleged to have caused the death of plaintiff's intestate. There was a trial to a jury, which resulted in a disagreement. Afterwards, upon suggestion of the trial court a motion was filed by the defendant for a directed verdict based upon the evidence submitted at the former trial. This motion was sustained, and judgment entered against the plaintiff. He appeals.
Reversed.
Charles J. Donnelly and James C. Hume for appellant.
McHenry & McHenry and W. A. Connolly for appellee.
The plaintiff is the administrator of the estate of Georgia Frazier, deceased. Georgia Frazier was the daughter of the defendant's son, and at the time of her death was 12 years old. Her father was dead and her mother had remarried. Her stepfather's name was Brown, with whom and her mother she was living at the time of the transactions in question and at the time of her death. Mrs. Brown and her children had inherited from her deceased husband a small piece of land upon which there was a small frame house. Before her marriage to Brown, Mrs. Frazier had rented the house on this land to the defendant, Frazier, her father-in-law, taking his note for $ 30 in payment of the rent. His lease expired in the spring of 1897. In June, 1896, Mrs. Frazier and Mr. Brown were married. In August following the house was vacant, and Brown and his family moved into it. Before doing so, however, Brown had attempted to arrange with the defendant for occupying it, but the defendant demanded the payment of $ 30 rent, and they never came to any agreement on the subject. After the family moved into the house Brown and the defendant had several altercations over the matter, but Brown would neither pay rent nor vacate. The defendant brought an action of forcible entry and detainer against Brown, and obtained a judgment therein about the first of September, 1896. Somewhere from the seventh to the ninth of the month a writ of removal was issued on the judgment, and placed in the hands of a constable for service. The defendant went with the officer to the house and remained there until the family were ejected therefrom. Georgia Frazier had for some days before the ejection been sick with the measles. The defendant knew of her sickness, knew that her condition had been such that it was not safe to move her before, and had caused his attorney to procure a certificate from her attending physician that she had so far recovered that removal from the premises would not injure her health. The evidence fairly shows that the real purpose in procuring this certificate was to convince the officer who was expected to make the ejectment that it could safely be done. When the defendant, with the constable and posse which the defendant himself had collected to accompany them, arrived at the house, Brown was away, but Mrs. Brown and her children were there. Georgia was able to sit up for a short time only, and was still badly broken out, the eruptions being plainly visible on the exposed part of her person. The evidence tends to prove that the day was cloudy, cold, and raw, with considerable wind. The defendant immediately ordered the constable to eject the entire family. Mrs. Brown told him that Georgia was too sick to be moved, and asked that they be permitted to stay on her account, but to the mother's plea for her sick child, his own flesh and blood, he turned a deaf ear, and still insisted upon the prompt execution of the court's mandate. The only fire in the house was then put out with water. After this was done the constable, notwithstanding the repeated orders of the defendant to proceed with the discharge of his supposed duty, told Mrs. Brown that he would not put them out until her husband came. The husband returned about an hour thereafter, and upon his return the ejectment was completed. Georgia was wrapped in a shawl and heavy stockings were drawn over her feet by her mother, and she went into the yard with the household...
To continue reading
Request your trial