Dickson v. Yates, 33895.

• Decision Date: 27 September 1921
• Docket Number: No. 33895.,33895.
• Citation: 184 N.W. 310
• Parties: DICKSON v. YATES ET AL.
• Court: Iowa Supreme Court

184 N.W. 310

DICKSON

v.YATES ET AL.

No. 33895.^a1

Supreme Court of Iowa.

Sept. 27, 1921.

Appeal from District Court, Davis County; C. W. Vermilion, Judge.

Action at law to recover damages for an assault upon the plaintiff's person and trespass upon his property by the defendants. There was a jury trial and verdict for the defendants. Plaintiff appeals. Reversed.Jaques, Tisdale & Jaques, of Ottumwa, R. M. Haines, of Des Moines, and T. P. Bence, of Bloomfield, for appellant.

Payne & Goodson, Ellsworth Rominger, J. F. Scarborough, H. C. Taylor, and Buell McCash, all of Bloomfield, for appellees.

WEAVER, J.

The petition alleges that in May, 1918, the defendants, some 30 or more in number, conspired and associated themselves together as a mob for the purpose of threatening, assaulting, and coercing the plaintiff and injuring and damaging his property, and in pursuance of such conspiracy and combination did maliciously assault him, by cursing him, shaking fists in his face, and threatening him with battery of his person, and did on the same day trespass upon and injure and deface his property. Because of such alleged wrongs, he asks a recovery of substantial damages.

The defendants deny the charges of conspiracy and wrong on their part, and make other averments of an affirmative character to which we shall later allude in discussing the charge to the jury.

There was a trial to a jury, and verdict and judgment for the defendants.

[1] The plaintiff's abstract makes no attempt to set out the evidence produced on the trial, except to state that the evidence offered tended to establish the truth of the charge made in the petition. That there was evidence to that effect must be taken for granted from the fact that the trial court submitted the issue to the jury.

I. The alleged errors mainly relied upon by the appellant are to be found in the charge of the court to the jury to the effect that, if plaintiff failed to establish the alleged conspiracy between the defendants or some of them to do the wrongs complained of, proof of the alleged assault or trespass by defendants or some of them would not be sufficient to support a recovery of damages, or, stated in other words, that there could be no recovery of damages for the assault, if any, or for the trespass, if any, unless it be proved also that the wrong was done in pursuance of a conspiracy to do it. That such was the court's conception of the law and of the issues presented is demonstrated by reference to the language of the charge. In stating the case to the jury the court, after giving the substance of the petition and defendant's denial thereof, proceeeded to set out the special matter pleaded in defense as follows:

“The defendants, further answering, deny that they committed any acts against the plaintiff which tended to injure plaintiff's feelings or by which he was humiliated and caused grief and annoyance, and they say that plaintiff's feelings were not outraged, nor did he suffer public disgrace; that plaintiff was at said time a bachelor, and was not associated with any class of people who had become prejudiced against the plaintiff by reason of any acts and conduct charged against the defendant; that at and prior to the transaction involved plaintiff had maintained an attitude of unconcern and apathy towards the people in general, and had acquired a character and reputation which would not suffer in estimation of his acquaintances by reason of the acts and conduct charged against these defendants; that plaintiff had lived a selfish life and had cultivated and acquired a disposition of unconcern as to the esteem in which he was held by his neighbors and acquaintances; that plaintiff was a strong, robust man, possessed of sufficient strength to defend himself, and was of a combative disposition, accustomed to fighting, and had prior thereto engaged in physical combat with his enemies, and was of a disposition and make-up to not suffer any feeling of outrage, humiliation, or grief by the acts charged in his position, and he did not suffer any damage on account thereof.

And defendants further say that certain individual defendants were at the time members of the county council of defense in and for West Grove township, and charged with the duty of aiding the government in the raising of such funds as were necessary to carry on the war; that other defendants were duly appointed officers and solicitors of the American Red Cross to solicit and raise subscriptions and collect money for said American Red Cross; that the transaction between plaintiff and the defendants at said time was in substance and to the effect that certain of the defendants solicited the plaintiff for a donation to said organization and informed him in a gentlemanly manner that it was necessary for every one to contribute to said organization; that plaintiff was not abused, neither was he assaulted, and if his feelings were injured and outraged it was not because of any wrongful conduct on the part of the defendants, and defendants deny that plaintiff was, in fact, insulted, assaulted, or his feelings outraged, or that he was brought into public disrepute by reason of the acts or conduct of the defendants on said occasion.”

After stating the issues, the court further charged (paragraph 4) that to entitle plaintiff to a verdict he must establish:

“First, that some two or more of the defendants entered into a conspiracy to injure him by asaulting his person or trespassing upon or injuring his property; and, second, that in pursuance of such conspiracy some one or more of the defendants did make an unlawful assault upon plaintiff or did wrongfully trespass upon or injure his property by injuring or destroying his shrubbery or putting paint on his house.”

By paragraphs 13 and 15 of the charge the court further told the jury:

“(13) If you find by the greater weight or preponderance of the evidence that two or more of the defendants conspired and confederated together to injure the plaintiff by assaulting him or trespassing upon or injuring his property, this fact alone would not warrant a recovery, but in order for the plaintiff to recover he must further establish by the greater weight and preponderance of the evidence that in pursuance of such conspiracy one or more of the defendants wrongfully made assault upon the plaintiff or wrongfully trespassed upon or injured plaintiff's property. * * *

(15) If you find by the greater weight or preponderance of the evidence that two or more of the defendants entered into an agreement or combination to unlawfully assault plaintiff or to secure plaintiff's subscription to the Red Cross by so unlawfully assaulting him, or to unlawfully trespass upon or injure his property, then such combination or agreement would constitute a conspiracy, and, if you so find that in pursuance of such conspiracy the defendants, or any one or more of them, did commit an assault upon the plaintiff, or did unlawfully trespass upon or injure his property in any respect as alleged, then all of the defendants shown by the greater weight or preponderance of the evidence to have been engaged in or parties to such conspiracy would be liable for whatever may have been done in carrying out the object of such conspiracy, whether they were personally present or actively participated in such alleged assault or trespass upon or injury to plaintiff's property or not, and in such case your verdict should be for the plaintiff and against such of the defendants as you so find were members of or parties to such conspiracy.”

After the jury had retired and had been in consultation for some time it appears to have been recalled to the courtroom at its own request for further instruction which was given in the following words:

“Gentlemen of the jury, in response to your question as to whether it is necessary for a conspiracy to be established as alleged before there can be a recovery for the alleged trespass upon plaintiff's property, you are instructed that before plaintiff can recover in this case for or on account of any alleged trespass upon or injury to his property you must find by the greater weight or preponderance of the evidence that some two or more of the defendants conspired to injure the plaintiff by so trespassing upon or injuring his property, and that in pursuance of such conspiracy one or more of the defendants did trespass upon or injure the plaintiff's property by trampling and injuring his shrubbery or putting paint on his house.”

It will thus be seen that under the court's instruction, in order to justify the jury in returning a verdict for the plaintiff, it was not enough for him to prove that the alleged assault or trespass was in fact committed, or that the defendants or some of them actively participated in such wrong, but before he could recover damages for the wrong so proved he must further establish that such assault or trespass was committed in pursuance of a conspiracy or combination entered into for that purpose. If this theory of the law is correct, it leaves little in the record...