Carlson v. Hall

• Decision Date: 07 May 1904
• Citation: 99 N.W. 571,124 Iowa 121
• Parties: HILDA CARLSON v. WILLIAM HALL, Appellant, and GEORGE GANNON
• Court: Iowa Supreme Court

99 N.W. 571

124 Iowa 121

HILDA CARLSON v. WILLIAM HALL, Appellant, and GEORGE GANNON

Supreme Court of Iowa, Des Moines

May 7, 1904

Appeal from Harrison District Court.--HON. A. B. THORNELL and HON O. D. WHEELER, Judges.

ACTION for damages. Trial resulted in judgment in favor of Gannon and against Hall, from which the latter appeals.

Affirmed.

J. S Dewell and Frank Tamisiea, for appellant.

Fallon & Egan, for appellee.

OPINION

LADD, J.

The plaintiff alleged that on August 25, 1901, the defendants "did willfully and maliciously assault this plaintiff and did then and there strike plaintiff with their fists, and kick her with their feet, thereby maiming and bruising her body, causing her great pain and suffering, for which she has been compelled, up to the present, to pay for medical attendance the sum of fifty ($ 50) dollars," and that "by their striking and kicking plaintiff at the time and place aforesaid did cause her to suffer permanent injuries to the internal organs of her abdominal cavity, to her damage in the sum of four thousand nine hundred and fifty dollars." The prayer was for judgment in the sum of $ 5,000. The defendants moved for more specific statement, but the error, if any, in overruling this, was waived by filing an answer. Kline v. Ry., 50 Iowa 656; Coakley v. McCarty, 34 Iowa 105.

II. The court, in one paragraph of the charge, stated that the plaintiff "claims to have received injuries from the assault of defendant which injured her person in various portions and in various manners, and has introduced testimony to show the location, nature, and extent of such injuries, and to show her present condition, which, as she claims, resulted thereupon." It is said that this shows that the court received evidence of injuries not embraced in the pleadings. If this be conceded, it does not follow that there was any error. The record does not contain the evidence, and, for all that appears, it may have been introduced without objection.

Exception is also taken to an instruction in which the jury was advised that compensation might be allowed for "physical pain and mental suffering," on the ground that such damages were not alleged in the petition. The case seems to have been tried, however, on the theory that the claim was based in part on this element of damage. In another instruction the court said "there was some evidence of sickness and pain and suffering of plaintiff and exclamations and declarations made by her relative to her pain and suffering during the period following the alleged assault." This indicates that the pain and suffering was treated by the parties as an issue, and, if so, neither may now take exception to the interpretation put upon the petition. Fenner v Crips, 109 Iowa 455, 80 N.W. 526. Every presumption is to be indulged in favor of the correctness of the...