Ewing v. Hatcher
| Decision Date | 20 November 1915 |
| Docket Number | 30174 |
| Parties | W. H. EWING, Appellee, v. C. E. HATCHER, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED FRIDAY, APRIL 7, 1916.
Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.
ACTION to recover damages for injuries sustained by plaintiff on account of assault and battery alleged to have been committed by the defendant. Judgment for the plaintiff. Defendant appeals.
Affirmed.
F. E Northup, for appellant.
Carney & Carney, for appellee.
This is an action to recover for personal injuries alleged to have been the result of an assault made upon the plaintiff by the defendant. The defense is that plaintiff was the aggressor, and that whatever injuries he received were inflicted by the defendant in defense of his own person. The cause was tried to a jury, and a verdict rendered for the plaintiff. Judgment being entered upon the verdict, defendant appeals.
In considering the errors complained of and upon which reversal is sought, we do, because of the manner in which the record is presented, confine ourselves only to those points touched on by the defendant in argument. Those pointed out upon which no argument is made, and concerning which no reason for reversal is given, we pass without comment. Counsel, in presenting the case, refers to the pages of the abstract upon which testimony complained of may be found. Turning to these pages, we do not find the evidence complained of in the argument upon the pages referred to, and it has been necessary for us to search through the record for the particular matter to which reference is made.
The first error relied upon involves the action of the court in admitting certain testimony over the objection of the defendant, and in sustaining objections to testimony offered by the defendant. In presenting these questions in his brief, counsel has evidently overlooked the rule, or has abandoned himself to a freer method than the rules prescribe. In presenting a record in which he claims these errors appear, defendant pursued the following method:
"There was error in admitting over defendant's objection, the following testimony appearing on pages 10 and 11 of the abstract."
Here counsel sets out the testimony as it appears upon the abstract, with the rulings of the court complained of without comment. Turning to the abstract, we find that a witness who was present at the time of the encounter which resulted in the injuries complained of, was asked as to defendant's appearance at that time,--how his face appeared. The answer was: "Why, his face was flushed as though he had been drinking." This was objected to and the objection overruled. The portion of the answer "as though he had been drinking," defendant moved to have stricken out. This also was overruled.
The evidence is abundant that the defendant had been, in fact, drinking. He denies that he was intoxicated, but that he had been drinking is not disputed. The controversy touching which this testimony was offered arose out of the fact that the defendant claimed that the plaintiff was the aggressor, while the plaintiff claimed that the assault was unprovoked. The appearance of the defendant at the time of the assault was competent and material. The question called for a fact, though in one sense the opinion of the witness. It was a statement of fact as to how the defendant appeared to the witness at the time.
Whether a person is intoxicated or not may be proved by a witness who has observed his conduct and his appearance at the time. The appearance of a person at a particular time can only be made manifest to the jury through the testimony of one who saw him at the time--one who observed and can describe his appearance. This kind of testimony has been recognized as competent. It has been presented in many ways. Many phases of this kind of testimony have been considered by the court. Whether a man is intoxicated or not is evidenced by his appearance, and one who has observed his appearance is competent to testify to the fact. The application of this rule in its general scope may be found in Vannest v. Murphy, 135 Iowa 123, 112 N.W. 236; Yahn v. City of Ottumwa, 60 Iowa 429, 15 N.W. 257; Bizer v. Bizer, 110 Iowa 248, 81 N.W. 465; State v. Huxford, 47 Iowa 16; Winter v. Central Iowa R. Co., 74 Iowa 448, 38 N.W. 154.
The next complaint is stated in the following language:
Here the defendant sets out certain testimony with the rulings of the court. An examination of the abstract shows that the complaint relates to the action of the court in permitting witnesses to state what the defendant said at the time that it is claimed he made the assault. We will not set the language out. It appears from the testimony of these witnesses that the defendant applied vulgar and opprobrious names to the plaintiff at the time of the assault. The words were a part of the act, accompanied the act, and were suggestive of the state of defendant's mind at the time that the act was committed.
The other testimony complained of relates to what the defendant did, the witness stating that he noticed the defendant had his hand in his pocket, "and this was suggestive to me, knowing he had left the room prior to that time." The last part of the answer was stricken out, to wit, "It was suggestive to me, knowing that he had left the room prior to that time." The rest was clearly competent as a description of an action of the defendant at the very time that the assault was made. No authority need be cited to support the ruling of the court.
We will not attempt to review all the attempted assignments of error in the introduction of testimony. Some are so clearly without merit that we may be permitted to express some surprise that they are urged here at all.
The next question complained of relates to the action of the court in permitting the plaintiff, when upon the stand, to answer the following question: "Did the injury interfere with the functions of the part alleged to have been injured in any way?" The answer was that it does. The question was objected to on the ground that it called for the opinion of the witness as to the cause of the injury, and the witness was not an expert. The part affected had functions peculiarly its own. That the injury interfered with normal functional action was a matter that the witness who suffered the injury was in a position to know and appreciate better than anyone else. It was a matter that was peculiarly within his own knowledge. The testimony disclosed his condition before and after the injury. He described minutely wherein the organ after the injury refused to perform its natural function. There was a visible injury upon the part affected--an injury that could be recognized by the eye. He said that the functional action was different since the injury. He had already testified to the place and character of the injury. The question was asked with reference to the injury complained of. The jury could not have been misled into thinking, under this whole record, that the plaintiff as an expert was giving independent testimony as...
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