Dickson v. Yates

• Decision Date: 23 June 1922
• Docket Number: No. 33898.,33898.
• Parties: DICKSON v. YATES ET AL.
• Court: Iowa Supreme Court

194 Iowa 910

188 N.W. 948

DICKSON

v.YATES ET AL.

No. 33898.

Supreme Court of Iowa.

June 23, 1922.

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

On rehearing, superseding 184 N. W. 310.

Action at law to recover damages for an alleged personal assault and for trespass upon the property of plaintiff. Cause tried to the jury, and a verdict returned in favor of the defendants. Plaintiff appeals. Affirmed.

Weaver, J., dissenting.Jaques & Tisdale, of Ottumwa, R. M. Haines, of Des Moines, and T. P. Bence, of Bloomfield, for appellant.

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

DE GRAFF, J.

This cause of action is a local echo of the World War. The causative facts have to do with certain quasi governmental agencies in the county of plaintiff's residence for the raising of funds to assist in the successful prosecution of the war, which movement apparently did not enlist the sympathy of the plaintiff, a well-to-do Iowa farmer of Davis county. These matters, however, have no material bearing upon the merits of the propositions involved on this appeal.

The plaintiff instituted this action to recover damages for an assault alleged to have been committed on and against his person, and also for a trespass upon and damages to his real property. It was a joinder in one cause of action of two distinct torts committed by different groups of men, defendants herein, to wit, trespass personaris and trespass quare clausum.

The plaintiff alleged in his petition that--

The defendants “jointly and severally conspired, confederated, and associated themselves together as a mob for the purpose of threatening,assaulting, and coercing this plaintiff, and for the further purpose of injuring and damaging his property, and that each and all of the said defendants jointly and severally and in pursuance of the said conspiracy, confederacy, and association, and as a mob, and at the town of West Grove, and county of Davis and in the state of Iowa, willfully, maliciously, and wantonly made an assault upon this plaintiff by coercing this plaintiff, shaking fists in his face, and threatening to commit battery upon his person; that, further, the said defendants, and all of them, did jointly and severally and in pursuance of said conspiracy, confederacy, and association and as a mob, then and on the same day, maliciously, willfully, and for the purpose of damaging and injuring the plaintiff and his property, paint a building on plaintiff's premises with yellow paint.”

All of the defendants except J. G. Stone filed a joint answer, and the defendant Stone filed his separate answer. The defendants made denial therein generally and specially to all of the allegations of the petition, and furthermore alleged that they were acting as solicitors for funds for the war activities of the United States Government in the World War, and without any force or show of force properly and politely solicited the plaintiff.

The burden of appellant's contentions has to do with the theory of the case as embodied in the court's instructions to the jury. The jury was told that it was essential, in order that plaintiff recover against any of the defendants, that the plaintiff establish by a preponderance of the evidence that two or more of the defendants did enter into a conspiracy to do the acts complained of, and that two or more of the defendants in pursuance of such conspiracy did actually do the acts complained of.

The jury by its verdict determined that the evidence did not sustain the theory of the plaintiff under the facts pleaded, and found that no conspiracy existed as charged, and consequently the defendants were not liable in damages.

We are primarily concerned with the legal principle announced in the instructions given in this case. It is quite essential to observe that the defendants were charged in the petition with having (1) assaulted the person of the plaintiff, and (2) trespassed upon his real property, and that these two trespasses were done by the defendants acting in pursuance of a conspiracy.

[1] The petition as drawn is not vulnerable to motion or demurrer by reason of misjoinder of persons or causes of action. This is the key that unlocks the door in this case for a proper entrance into the room of legitimate discussion. Plaintiff predicated this action on a conspiracy theory, and, having so pleaded, he was at liberty to charge as many separate assaults or acts of trespass as he wished, and defendants were compelled to meet his allegations by answer or stand defaulted. This case is not within the purview of Code, § 3548. There was no waiver. Cogswell v. Murphy, 46 Iowa, 44;Bort et al. v. Yaw, 46 Iowa, 324;Dahms v. Sears, 13 Or. 47, 11 Pac. 891.

[2] The essential difficulty of this case on appeal is the total absence from the record of evidence supporting or tending to support the contention of appellant. We are not holding that damages for a joint wrong are not recoverable in the absence of proof of a conspiracy when alleged, nor do we challenge the statement that the averment of a conspiracy in the petition does not ordinarily change the nature of the action, nor add to its legal force or effect. Briefly and plainly stated, our position is this: That, the court having submitted the case on the theory of plaintiff, to wit, a conspiracy, and the jury by its verdict having found on the facts that there was no conspiracy, that finding is conclusive; and, secondly, that the record does not disclose that the two torts charged, or either of them, was committed jointly by the defendants or some of them without reference to a conspiracy.

By its verdict the jury found that neither trespass was the result of a conspiracy. Let us suppose for the purpose of argument that the jury was warranted under the evidence in finding that but one person from each group perpetrated independently the torts respectively alleged, or let us suppose that two or more persons from each group perpetrated without concert of action the torts respectively alleged. Clearly these persons on either supposition could not be subject to the same verdict or judgment.

In this case the evidence does not identify any single person or any two or more persons jointly as the actual wrongdoers of either tort or both torts. No complaint is made that the instructions given are erroneous, but it is contended that the case should also have been submitted on the theory of joint tort-feasors without reference to a conspiracy.

[3] Instructions must be written and read with reference to the facts and to the issues in the case, and only as thus limited or explained has the pronouncement of law in opinion any value. The instruction given by the court in the instant case is sound as an abstract legal proposition, and there is no evidence before this court that warrants its impeachment or the giving of any other or different instruction as to joint wrongdoers. The record facts under the pleadings compelled the trial judge to instruct as he did. The record facts show two groups of alleged wrongdoers and two torts committed, each distinct from the other. Unless there was a conspiracy to do the two distinct torts charged, or unless it is shown that the same parties or some of them committed the two torts jointly, there can be no recovery.

The appellant in this case does not set out a line or syllable of evidence in his abstract bearing on this proposition. Who committed the torts charged? What was the manner of the commission of either tort? If an amendment to the abstract had not been filed, this court would have no means of knowing when, how, or by whom either tort was committed, except so far as the allegations contained in plaintiff's petition. Allegations are not proof. The plaintiff, Dickson, himself, as shown by appellees' additional abstract, testified:

“I don't know who put the paint on my house on the farm west of town. I don't know that any of the defendants put paint on it that night. I delayed bringing this action until I thought the federal authorities had dropped the criminal charges against me for violating the espionage act. After I had made my donation to the Red Cross, part of the crowd around there left and went in the direction of my farm. I don't know which ones of the defendants went there. No one struck me there that night. Some one did jostle me that night, but I don't know who it was, and I don't know whether it was accidental or intentional. It didn't hurt me any though.”

Each and every one of the defendants testified in substance that there was no plan, arrangement, understanding, or suggestion made by any one to their knowledge that E. G. Dickson or his brother Cowp was to be solicited for a donation on the night in question; that there were no threats whatever made to injure the person of E. G. Dickson; that no one struck him, and there was no force used in any way to secure his donation; that none of them took any part in the solicitation of the donation except Harper and Gleason, the regularly appointed Red Cross solicitors, and Sprouse, who was standing nearby at the time; that the regular subscription card was signed by Dickson upon the request of Gleason and handed to the latter; that Harper, who was in company with Gleason, stated to the plaintiff that he had not given anything to the Red Cross drive, to which Dickson replied, No; and he said that he ought to give something, and shortly thereafter made the donation by a subscription of $100. This event, so far as the record shows, had no relation to the alleged trespass on the plaintiff's farmyard three-fourths of a mile away. Defendants Howard, Stone, Fry, Pirtle, the two Cary men, Hockersmith, Yates, and Barnett testified that they were not at the Dickson home that night; that they did not know anybody was going to the plaintiff's home; that they did not request anybody to go; that no one requested them to go. The...