Davis v. Hansen

• Decision Date: 08 May 1919
• Docket Number: 31670
• Citation: Davis v. Hansen, 187 Iowa 583, 172 N.W. 1 (Iowa 1919)
• Parties: J. E. DAVIS, Administrator, Appellee, v. C. J. HANSEN, Appellant
• Court: Iowa Supreme Court

172 N.W. 1

187 Iowa 583

J. E. DAVIS, Administrator, Appellee, v. C. J. HANSEN, Appellant

No. 31670

Supreme Court of Iowa, Des Moines

May 8, 1919

REHEARING DENIED OCTOBER 25, 1919.

Appeal from Shelby District Court.--J. B. ROCKAFELLOW, Judge.

PLAINTIFF has judgment for damages claimed to have been sustained through the alleged wrongful death of his decedent, and defendant appeals.--Reversed and remanded.

Reversed and remanded.

Edward S. White, and Cullison & Cullison, for appellant.

Byers Byers & Miller, for appellee.

SALINGERJ. LADD, C. J., EVANS and PRESTON, JJ., concur.

OPINION

SALINGER, J.

I.

Instruction 11 deals with the measure of damages, and charges that, if the jury reaches what allowance should be made, it should be such sum, if any, which, the evidence shows, if payment were made at this time, would be equivalent to the amount of the estate of decedent if he had been permitted to have lived to the end of his natural life; that the amount of the estate at his death would be such sum as it can be found from the evidence appears reasonably probable that Hamblin would have saved or accumulated at the time of his death, deducting his probable expense of living, probable health or sickness, and taking into consideration that the sum allowed at this time is to be a sum which, with its accumulation of interest thereon, would be equal to the amount of his savings, had he lived out his expectancy.The exceptions are that the instruction is misleading and confusing; does not state the proper measure of damages; that it tells the jury the damages suffered are such sum as would equal the estate of Hamblin at the time of his death, and does not sufficiently inform the jury that the damages to be suffered must be the present worth of Hamblin's estate; that it was erroneous to charge "and you should also take into consideration that the sum fixed at this time is to be such a sum, with its accumulation of interest thereon, as would be equal or be an equivalent to the amount of his savings at the time of his death had he lived out his expectancy;" that this quoted part is erroneous because it fixes no rate of interest, and does not determine that no interest at all would accumulate; and that no basis is stated on which the jury can determine the present value or worth of the estate.Further criticism is that the instruction assumes that decedent would have lived out his expectancy, and the jury is told to find the amount of his savings at the time of his death, had he lived out his expectancy; and that, instead, the charge should have directed the jury to find the amount of his savings at the time of his death, regardless of whether he lived out his expectancy or not, and that it did not follow that the length of his life and his expectancy, as shown by the tables introduced in evidence, were the same.

We are of opinion that these exceptions are sufficiently disposed of by pointing out that Instructions 1 and 2, offered by the appellant, in effect asked the court to charge as was done in the parts of Instruction 11 given, and which are now complained of.Without determining whether the instruction given was or was not erroneous, we hold that appellant may not complain of its giving.

II.Instruction 8 charges that the law regards human life with such care as that defendant was not justified in intentionally wounding or killing Hamblin, even if defendant believed or had reason to believe that Hamblin or the boys in his company, or some of them, intended to commit some depredation upon the machinery or other personal property of the defendant; that in such case the law affords defendant another and different remedy, and he was not justified in resorting to the use of a deadly weapon to kill Hamblin or said associates; and if it be found that, in discharging "said" revolver and inflicting "said wound" upon Hamblin, defendant acted with intention to wound or kill Hamblin or some of said associates, and it is further found that the death of Hamblin was the proximate result of a wound so inflicted, the verdict should be for plaintiff.

Some of the exceptions lodged against this instruction charge that it assumes defendant killed Hamblin, and further assumes that he intentionally wounded and killed Hamblin.If some of the words used in the instruction are segregated from the context, and strictly construed, it might be concluded the court had assumed there was an intentional wounding or killing.But the charge taken as a whole makes it very clear that the jury could not so have interpreted these words used in this one instruction.The charge as a whole instructed the jury that plaintiff had the burden of proving either intentional wounding or intentional killing.And the phrases objected to in Instruction 8 could not, in reason, have been understood to be more than an introduction to what rights the defendant had to protect his property, and under what conditions it was not permitted to wound or kill.

III.This brings us to the serious question concerning Instruction 8.Other exceptions assert that, since no claim of self-defense or justification was made, the instruction charged the...