Gorachi v. Hintz
| Decision Date | 08 December 1882 |
| Citation | 14 N.W. 379,13 Neb. 390 |
| Parties | GEORGE GORACKE, PLAINTIFF IN ERROR, v. JOSEPHINE HINTZ, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
Error to the district court for Johnson county. Tried below before WEAVER, J.
AFFIRMED.
Osgood & Harris and C. Gillespie, for plaintiff in error.
Damages excessive. Yates v. Joyce, 11 Johns. 136. Rockwood v. Allen, 7 Mass. 256. Bussy v Donaldson, 4 Dall., 206. Allison v. McCune, 15 Ohio 726. Froy v. Parker, 53 N.H. 342. Punitive damages not recoverable. Boyer v. Barr, 8 Neb. 68. Roose v. Perkins, 9 Id., 304. Riewe v McCormick, 11 Id., 264. Petition for new trial on ground of additional evidence should have been granted. Reasonable diligence is all that is required. Jones v Singleton, 45 Cal. 94. Brown v. Lahers, 79 Ill. 575.
Selby & Irwin, for defendant in error, on newly discovered evidence, cited cases mentioned in opinion, and Bowen v. Rutherford, 60 Ill. 41. Loeffner v. The State, 10 Ohio St. 598. On absence of witness. Cowen v. Smith, 35 Ill. 416. Excessive damages. C. & N. W. R. R. v. Williams, 55 Ill. 185. Alcorn v. Mitchell, 63 Ill. 553. Blanchard v. Morris, 15 Ill. 35.
The petition in error in this cause assigns ten 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 whole 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 error in his petition says "the fact of the beating he stood ready to prove." fro 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 proven 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:
Q. State to the jury if you saw her (the plaintiff) in the fall of 1881?
A. Yes, I saw her in the fall of 1881.
Q. 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 had no effect on the plaintiff's health in March of that year.
3. The court erred in giving the 2d and 3d paragraphs of instructions given by the court of its own motion. The instructions referred to are in the following words:
We do not see in what respect 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 7th 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.
The verdict was for two hundred and fifty dollars, 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 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.
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 sons. A different state of facts, less damaging to him, is testified to by the defendant, and he is corroborated by one witness, his son. The jury, under a proper instruction, find the testimony of the plaintiff and her witnesses to be true. As to the other points, the extent of the injury as subsequently developed and the amount of damages, there is some testimony as to every material point.
The above presents no sufficient ground for a new trial. It is the duty of a party before entering upon a trial to know that his witnesses are present, and...
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