Haupt v. Swenson
| Decision Date | 23 November 1904 |
| Citation | 101 N.W. 520,125 Iowa 694 |
| Parties | HAUPT v. SWENSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wright County; J. R. Whitaker, Judge.
Suit to recover damages for a simple assault. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. Reversed.Birdsall & Birdsall and C. F. Peterson, for appellant.
John D. Denison, Jr., for appellee.
No physical violence was inflicted upon the plaintiff, and the action is based solely upon fright and prostration caused by the defendant's acts. The plaintiff was pregnant, at the time of the alleged assault, with a child which was afterwards born in due season, and in a normal condition. Upon her examination in chief she was permitted to testify, over the defendant's objection, that the child was then poor, small, and nervous, and had grown but little since it was born. This evidence was clearly incompetent and improper, and was as clearly prejudicial to the defendant. In the first place, there was no evidence tending to show that the then condition of the child was the result of the defendant's acts or of the plaintiff's fright. In the second place, there was no issue in the case under which the plaintiff could recover for the disability of the child, even if it be admitted that the appellant is responsible therefor, and the plaintiff entitled to recover on account thereof. Furthermore, the damages which the plaintiff may recover for mental suffering are such only as are the direct result of the assault upon her apart from any alleged injury to the child. Tunnicliffe v. Bay Cities Ry. Co. (Mich.) 61 N. W. 11, 32 L. R. A. 142;Bovee v. Town of Danville, 53 Vt. 183.
Complaint is made of the court's definition of an assault. The jury was told that an unlawful assault “is a menace by words or acts threatening violence to the person of another, coupled with the means, ability, and intent immediately to commit the violence threatened.” The criticism of the instruction is that it omitted to state that there must be an attempt or endeavor to carry out the threats. We think it true that, to constitute a criminal assault, there must be some evidence of an attempt or endeavor to do violence to the person. State v. Malcom, 8 Iowa, 413;Irlbeck v. Bierl, 101 Iowa, 240, 67 N. W. 400, 70 N. W. 206. If the rule were otherwise, mere violent and abusive language or threats accompanied by violent gestures would be an assault whether there was an apparent...
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