Gorachi v. Hintz

• Decision Date: 08 December 1882
• Citation: 13 Neb. 390,14 N.W. 379
• Parties: GORACHI v. HINTZ.
• Court: Nebraska Supreme Court

13 Neb. 390

14 N.W. 379

GORACHI

v.HINTZ.

Supreme Court of Nebraska.

Filed December 8, 1882.

Error from Johnson county.

Osgood & Harris and C. Gillespie, for plaintiff.

Selby & Irwin, for defendant.

COBB, J.

The petition in error in this cause assigns 10 grounds of error, which will be stated and disposed of in their order.

“(1) The court erred in sustaining the objection to the question asked of the defendant in error, if her husband was not in the habit of beating her. The fact of the beating the plaintiff in error stood ready to prove.”

The plaintiff below, in her petition, had alleged as a ground of aggravated damages that at the time of the assault and beating for which the action was brought, she was pregnant, and that by reason of such beating, etc., she had suffered a miscarriage. It was probably the design of the testimony sought to be elicited by the question, to show by the witness that the miscarriage was caused in all or in part by the beating of the plaintiff by her husband; but certainly no answer which could have been made to the question could have had that effect. Whatever may have been the habit of her husband, unless he did in fact beat her at or shortly before the time of the misfortune, it could not have contributed to that end. Plaintiff, in his petition in error, says the fact of the beating he stood ready to prove. From this it would seem that counsel thought that before they would be allowed to prove such beating of the plaintiff by her husband, she must deny it. In this view they were in error. If such fact existed, they could prove it as a ground of defense to the aggravation of injury, not by showing the habit of the husband in this regard, but the fact of such beating at or about the time of the miscarriage.

“(2) The court erred in excluding from the jury material evidence offered by the plaintiff in error, to be proved by one Wiley Sandusky, of careless, imprudent, and dangerous acts and habits of the defendant in error while in a state of pregnancy.”

By reference to the testimony it appears that the witness Wiley Sandusky was sworn on the part of the defense. After having stated that he was acquainted with the plaintiff, he was asked the following questions: “ Question. State to the jury if you saw her [the plaintiff] in the fall of 1881. Answer. Yes, I saw her in the fall of 1881. Question. You may state if there was any occurrence happened there.” Plaintiff objects as too remote and immaterial. Objection sustained. The court was clearly right in sustaining this objection. Whatever act of carelessness or imprudence the plaintiff may have committed in the fall of 1881, could have no effect on the plaintiff's health in March of that year.

“(3) The court erred in giving the second and third paragraphs of instructions given by the court of its own motion.”

The instructions referred to are in the following words: “ Second. If you shall find from the evidence that the defendant assaulted and beat the plaintiff, and that she was injured thereby, she will be entitled to a verdict at your hands for such damages as may have been shown by the testimony that she has sustained, not exceeding the $500 claimed in the petition. However, this instruction is given you subject to the proposition of law that the defendant, in the protection of his person or property, would be justified in using so much force only as was necessary to protect his person from injury or his property from being carried away; that is, such force as a man of ordinary prudence would have used under similar circumstances. Third. If you shall find from the evidence that the defendant, after pushing or knocking the plaintiff on the ground, if you find, jumped upon her with his knees and beat her, you will find for the plaintiff. You are the judges as to what weight you will give to the testimony of each and every witness.”

We do not see in what respects these instructions are erroneous, or fail to state the law of the case. Plaintiff in error in his brief fails to point out any error in these instructions, unless it be that it is to these that he refers in the seventh point in his brief as “giving prominence to the evidence of the plaintiff, to the entire disparagement of the plaintiff in error.” We do not consider this charge as giving undue prominence or any prominence to any part of the evidence. The court states the material facts of the plaintiff's case, as alleged in her petition, and testified to by her and her sons,--a part of which is denied by the defendant and his son,--and tells the jury that if they find such facts to be true that they shall find for the plaintiff. We see no error in this.”

“(4) * * * * * * * *

(5) That the damages are excessive, appearing to have been given under the influence of passion or prejudice.”

The verdict was for $250, for the assaulting and beating of a pregnant woman by a man to such a degree as not only to produce an abortion, but to permanently disable and destroy the health of the woman. There is nothing in the pleadings or the evidence, nor have we been pointed to fact, theory, or hypothesis, by which said amount would seem to be excessive compensation for the injury. According to the testimony it is quite too small.

“(6) The verdict is not sustained by sufficient evidence. There certainly is a sharp conflict of testimony. The facts and circumstances of the assault and beating are testified to by the plaintiff and two witnesses, her...