Brause v. Brause

• Citation: 190 Iowa 329,177 N.W. 65
• Decision Date: 13 April 1920
• Docket Number: No. 32799.,32799.
• Parties: BRAUSE v. BRAUSE ET AL.
• Court: United States State Supreme Court of Iowa

190 Iowa 329

177 N.W. 65

BRAUSE

v.BRAUSE ET AL.

No. 32799.

Supreme Court of Iowa.

April 13, 1920.

Appeal from District Court, Fayette County; A. N. Hobson, Judge.

Action at law to recover damages for assault and battery, claimed to have been committed by defendants upon the plaintiff. Trial to a jury, which returned a verdict in favor of plaintiff against both defendants for $5,000, which included $1,500 exemplary damages. The amount of the exemplary damages was shown by the answer to a special interrogatory as to how much exemplary damages were included in the general verdict. In ruling on defendants' motion for new trial, the court announced that unless plaintiff remitted from the verdict all compensatory damages in excess of $2,000, a new trial would be granted defendants. Thereupon the plaintiff remitted all compensatory damages in excess of $2,000 from the verdict, and the court overruled the motion for new trial, and rendered judgment against defendants in favor of plaintiff for $3,500. The defendants appeal. Affirmed.W. C. Lewis, of West Union, and D. D. Murphy, of Elkader, for appellants.

James D. Cooney and E. H. Estey, both of West Union, for appellee.

PRESTON, J.

1. Plaintiff claims that the defendants assaulted and beat her, and that she was injured and damaged thereby. Defendants deny plaintiff's claim, and allege that plaintiff assaulted defendant Myrtle Brause, and that any injuries received by the plaintiff were caused by her own act in provoking the assault, and were necessary to repel the assault of plaintiff. No complaint is made of the instructions, and they are not set out in the record. The errors assigned are as to the sufficiency of the evidence to sustain the verdict against the defendants, and as against defendant Rebecca Jane; that the verdict is excessive and the result of passion and prejudice; that the court erred in not setting the verdict aside and granting a new trial, and in attempting to correct the same by reducing the amount of damages; that the verdict, after remitting the amount fixed by the court, is still excessive.

Plaintiff is the wife of Rudolph Brause, a son of defendant Rebecca Jane Brause, and her husband, Dan. The defendant Myrtle Brause is the daughter of Rebecca Jane and Dan, and a sister of Rudolph, plaintiff's then husband. Plaintiff was married to Rudolph in 1910. They lived in West Union from their marriage until 1913, Rudolph carrying on his father's farm near West Union part of the time. In 1913 plaintiff and her husband moved on the farm in a house built by Rudolph under an arrangement with his father. This house was near the house occupied by Dan and his family. At the time of the transaction complained of, plaintiff and her husband and two children, eight and four years of age, were living in the house built by Rudolph, as stated. The trouble in question occurred on the morning of July 10th, after the men had gone to the field. Appellantconcedes in argument that the evidence as to what happened after the trouble commenced is conflicting. The defendants' version of the transaction, and of plaintiff's injuries, is substantially as follows: That plaintiff went up to the Dan Brause home to pick some cherries, and met defendant Rebecca Jane Brause, who was washing in front of the house, and she told defendant that she came to get the cherries, and was told that there were no cherries, that the birds had been eating them, and that Myrtle had picked them. Plaintiff was disappointed, and felt as if she ought to have stayed at home. She then went to the north cornfield for some gooseberries, and on her way back came again to the Dan Brause house and asked Mrs. Brause for a carpet which belonged to her. Mrs. Brause told her the carpet was upstairs. Plaintiff started for the carpet, going through the kitchen and hall to go upstairs. Mrs. Brause called after her, saying she would go and get the carpet, as she knew where it was, and the plaintiff did not, but plaintiff kept on going, and Mrs. Brause went by her on the stairway and got the carpet from one of the bedrooms and gave it to Nellie, who was then standing at the head of the stairs. She started down ahead of Mrs. Brause, who came on behind, and it seems the talk was not very friendly. Plaintiff stated that it was funny that she had to run up there for everything; that it was her carpet, and made mention of a coat which she had missed, whereupon she was asked by Mrs. Brause if she insinuated that they had taken her coat. She said no, but that she had missed it for a long time, and had told her husband that morning that she was going to search the whole premises for the coat, if it did not appear. She had a good deal of feeling about the coat, and that was why she mentioned it. They went down the stairs out through the kitchen, and met Myrtle, who had then gone outside. Myrtle was in the kitchen when they went upstairs. Words passed between them regarding the coat and other things, and Myrtle called plaintiff a liar, and the fight commenced. Nellie was struck by Myrtle several times, in the face and head and neck, and plaintiff had hold of Myrtle's hair and was also striking and kicking.

The plaintiff claims that Rebecca Jane Brause struck her and beat her, and that Mrs. Rebecca Jane Brause struck her coming down the stairs is denied by the other witnesses, and Mrs. Rebecca J. Brause claims that all she did was to try to get the two women separated and to loosen Nellie's hands out Myrtle's hair, and the uncontradicted evidence shows that she was trying to get Nellie's hands loose from Myrtle's hair.

After they separated Nellie, the plaintiff, and her two children went home, and her sister Bessie and the doctor were called from West Union, and as a result of the fight she had a black eye, and the side of her face was contused, and she complained of difficulty in swallowing, and there was an imprint of teeth in her arm, showing tooth marks above the elbow on both sides of the forearm; her face and neck were red, and her hair was snarly and tousled. The affected parts were treated with hot applications and a boracic acid lotion, and the arm washed with alcohol and painted with a tincture of iodine. A doctor testifies she was laboring under very much excitement, rather hysterical. She remained in their own house until the next evening, when her sister removed her to her father's home in West Union, where she has since been living with her two children. There was no further treatment by the physician. He, however, visited her again at her father's house July 17th. At that time her face had gone through the ordinary stages of a contused wound; her arm was healed; the color in her face was absorbed out, just showing green spots here and there through it. He noticed no other injuries, and no complaint was made to him of any other injuries. When the doctor saw her seven days after the injury she was practically well so far as the wounds were concerned. She was a woman of nervous temperament, and had some trouble before, prolapsus uteri. Plaintiff contends, and the evidence tends to so show, that she is a small, delicate woman, and at the time of the assault weighed 110 pounds, and that defendant Myrtle is a strong, healthy woman, who works out, and has cooked at a hotel for a time. At the time of the assault, Myrtle weighed 150 pounds. Rebecca Jane weighed 120 pounds. At the time in question plaintiff was still the wife of Rudolph.

Plaintiff's version of the trans-action is substantially as follows: At the time in question, plaintiff went up past the house of defendants to get some fruit, and on the way back stopped at their house to get a carpet which belonged to her. Rebecca J., the mother-in-law, told plaintiff that her carpet was upstairs, and plaintiff said she would go and get it. When plaintiff had gone into the house of defendants and part way up the stairs for the purpose of getting the carpet, the mother-in-law, Rebecca J., came running after her, passed her on the stairs, got the carpet, and threw it at plaintiff.

Rebecca J. then started to abuse plaintiff, told plaintiff she did not keep her house or her clothes clean; that she was dirty; called her vile names; said plaintiff was running a house of prostitution; that plaintiff was lying around with men; that she had seen plaintiff with Jim Barrett out in the cornfield and with others, called her a bitch and a red-headed devil; told plaintiff they were tired of her on that place, and were going to get rid of her. The mother-in-law, also told plaintiff at that time that they were not going to let her live on the farm; gave plaintiff a shove with her hand as if to shove her downstairs; struck plaintiff twice on the back on the way downstairs, and told plaintiff to get out and stay out.

As soon as the plaintiff and Rebecca J. came downstairs, the defendant Myrtle Brause, sister-in-law of plaintiff, started to make trouble. Plaintiff told these defendants then that she was going to get out of there, go home and stay away from there, and started to go.

Plaintiff started home with her carpet on her arm, and both of these defendants followed her, calling her names. They called her a bitch, a liar, a dirty old slut and a redheaded devil; told her she was trying to snare all the men in the neighborhood, including her father-in-law, Daniel Brause. Rebecca J. then grabbed plaintiff by the shoulder and back of the neck and said:

“Here, Myrtle, let's get after her. We will get rid of her. The two of us will get rid of her right now for good. I will hold her while you pound her until she doesn't know anything.”

Then while Rebecca J. was holding plaintiff, Myrtle commenced slapping her. Plaintiff tried to get away from them, but Myrtle got plaintiff by the neck, and Rebecca J. got plaintiff by the hair, and Myrtle said:

“Hold her until I get my teeth into that face of hers, and I will fix her so she won't be so good looking.”

Myrtle then came at pl...